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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


'X. 


k^ 


M^. 


CASES  Oil   CRIMINAL  PROCEDURE 


SELECTED  ITIOM  THE  DECISIONS  OP  THE 


SUPREME  COURT  OF  JOV/A 
EY 

ROLLIN  :i.  p:z;kkiiis 


i^' 


Professor,  of  Law  in  the  State 
University  of  Iowa 


VOL.  I 


Mimeocraphed  by 
EDWARDS  BROTHERS.  AM  ARBOR,  MICHIGAN, 


Copyright  1920  by  Rollin  M.  Perkins 


•  •*'■ 


T 


-5^3327 


TABLE   OF  CONTENTS 

CF   VOLUI'fflS   I    '^   II 

PART   Oils 

The  Limitarlons  of  Prosecution. 

CHAPTER  J 

Page 

Jurisdiction  .  - • -'- 

Section  1.  The  Extent  of  the  Authority  of  the  State  1 

Section  2.  Exti-adit ion  ^ 

Section  3.  Ver.ae    ^^ 

Section  4.  Courts  ^^ 

C?AP'iEP  II 

Statute  of  Limitc-tions  ^^ 

CK/TTER  7. II 

Former  Jeopardy  , ^^ 

PART  TWO 
Proceedings  Preliminary  to  Trial 
CILAPTEK  IV 

Steps  ^y  tne  Ctate  Prior  to  Indictment   56 

Section  1.  Introduction  ^° 

Section  2.  The  Complaint  ^"^ 

Section  3.  The  Warrant  ^^ 

Section  4-  Arrest  °^ 

Section  5.  The  Preliminary  x.xamj  nation  and  Sumiary  Trial  of 

Nonindictable  Offense.!  '^^ 

v(a)  The  Preliminary  Examination  ^^ 

■(h)  The  Summary  Trial  of  Nonindictable  Offenses  73 


Section  6 .   Discharge ,    Coramitment   and  Bail 91 

CHAPTER  V 

The  Indict:nent S3 

Section  1.  The  Finding  and  Presentation  by  the  Grand  Jury  ..  93 

Section  2.  Pom  and  Contentsn 104 

(a)  The  Caption  and  the  Commencement  104 

(b)  The  Accusation  107 

( 1 )  In  General 107 

(2)  Certainty  of  S-catement  112 

(3)  Name  and  lescription  of  the  Lefendant  117 

(4)  Time  and  Place  120 

(5)  The  Gist  of  +hc  Offense  128 

(5)  Lescription  of  Third  Persone  and  of  Property  136 

(7)  Written  Instruments  or  Papers  143 

(8)  Intent,  Knowledge  etc 146 

(9)  Statutes 152 

(c)  The  Conclusion 161 

{ d)  Signatures  and  Indorsements  162 

Section  3.  Joinder  of  Offenses  173 

(a)  Duplicity  173 

(b)  Joinder  of  Courts  180 

(c)  Election  185 

onction  4.  Joinder  of  Parties  18C 

Section  5.  Amendments  195 

CHAPTER  VI 

The  Information  200 


CHAPTER  VII 
Steps  By  the  State  After  the  Indictment  204 

.  Section  1 .  The  Arraigmnent  204 

f 
Section  2.  Motions  205 

Section  3 .  Demurrer  206 

Section  4.  Nolle  Prosequi  206 

CHAPTER  VIII 

Steps  By  the  Defendant  207 

Section  1 .  Bail  207 

Section  2.  Habeas  Corpus  221 

Section  3 .  I'otions  and  Petitions  228 

(a)  To  Set  Aside  the  Indictment  228 

(b)  To  Change  the  Place  of  Trial  236 

(  c)  For  ether  Purposes  . 242 

Section  4 .  Demurrers  242 

Section  5.  Pleas  246 

(a)  In  General 246 

(b)  Pleas  Hot  Used  Under  the  Code  247 

(1)  Plea  to  the  Jurisdiction 247 

(2)  Plea  of  Sanctuary  247 

(5)  Benefit  of  Clergy  ., 248 

(4)  Plea  in  Abatement  248 

(5)  Plea  of  Nolo  Contendere 249 

(6)  Plea  of  Agreement  to  Turn  State's  Evidence  ...  249 

(7)  Plea  of  Pardon 249 

( c )  Picas  Under  the  Code  250 

(1)  Plea  of  Guilty  250 

(2)  Plea  of  Not  Guilty  250 

(3)  Plea  of  a  Former  Judgment  of  Conviction  or 
Acquittal  of  the  Offense  Charged  251 

Section  6 .  "vVaiver  252 


lOV/A   CASES 

OIT 

CRIMINAL   PROCEDURE 

PART    I 

THE  LmiTATIONS  OF  PROSECUTTCIT 

CHAPTER   I 

JUP.ISDiCTIOiT 

Section  1 . 

The  Extent    of  the  Authority  of  the  State. 

Criminal   Prosecutions   are  subject   to   limitations   of  three 
distinct    kinds:    namel y.  j uri ^  1  rtJiny    laps e  of  time  and _..fp_rmer 
j  eopardy  .  — 

■Tiirtfldiction   is   the  power  to   hear  and_  determine  a  cause 
oX_§XLt.ion!      in  a  %-ery  ^ewWMul — wdj;"'.;L   uue-'^tTie   V.OTd   Jurisdi ct  ion 
first, |iJ;o   mean  the  scope  of  authority  of  a  state;    and   second, 
withirrthe  statej^t^o    signify  the  scope  of  authority  of   its 
various  tribunals.     To   have  jurisdiction  over  a   criminal   pros- 
ecution means  to   have  power  first,  to    inquire   into  the  facts; 
second,    to    apply  the  law  to   the  facts;    and  third,     if  the  lav/  as 
a-oplied  to   these   facts    requires    it,  to    pixnounce  the  appropriate 
sentence.     Any  given  court   may  lack  these  pov;ers    either  because 
they  are   not    within  the   judicial   machinery  of  the   state  at    all, 
or  because  they  are  lodged   e:cclugively   in  some  other  part   of 
this  machinery.    If  any  such  question  arises   we  have  first   to 
decide  whether  the  state  has  the  pov/er  to  tr\-  the  accured   for 
the  alleged   crime. 


State  V.   Moyers 

Supreme  Court   of   Iowa,    1912.   155    lov/a  678. 

In  a  prosecution   for  uiilawfully   using  nets    in  the  waters  of 
Iowa   it    appeared  that   the  defendant    "had  taken   fish  with  a   net 
from  that    portion  of  the  Mississippi    river  lying   east   of  Des 
Moines   county  without    having   first    procured  a   license  under  the 
laws  of  this   state,    but   there  was   a   conflict    in  the  evidence  as 
to    v/hether  the  act    was   done  west    or   east   of  the   center  of  the 
main  navigable  channel   of  said     river." 

5263 


The  Extent   of  the  /.uthority  of  the  State  2 

McClain,     G.    J..    -    In  the  provisions   of  the  Code  regulating 
the  talcing   of   fis'h  in  the  waters   of  the  state  there      is   a   general 
exception   excluding   the  waters   of  the  Liississippi    river    (and 
certain  other  boundary   rivers)    from  such  regulations.      Code,     sec- 
tion 2547.      But    in  1909   a  statute   v/as    enacted   providing  that    in 
the  boundary   rivers   thus    enumerated  there  should  be   no    fishing  v/ith 
nets   or  seines   without    first    procuring   from  the   fish  and  game  •     •• 
wai'den  of  this    state  an  annual   license  for  the   use  of  such  nets   and 
seines,     the  license  fee  being   fixed  by  the  statute,    and  the  taking 
by  any   person  of  fish  of  a   certain  description   fron  said   rivers 
e::cept   by  hook  and  line  during  a   specified  portion  of  the  year  was 
also    prohibited.      See   chapter  155, 'Acts   of    33d  General   Assembly, 
as   amended  by   chapter  117,       Acts    o4th  General   Assembly.      Prior  to 
the   enactment   of  these   statutes^  lihe  lav/s   of  the  state   regulating 
fishing   were  not    applicable  to   the  navigable  boundary   rivers   of  the 
state  v/hich  were  subject   to   the  concurrent    jurisdiction  of  adjoin- 
ing  states.      Little  v.    Green,    144    Iowa,     492.      In  the  statutes   last 
cited  this   st  at  e  has   at  t  empt  ed   for  the  first    time  to    regulate   fish- 
ing  in  these  boundary   rivers,     and  the   question  now  presented        is 
whetjler  the  state  nay  legislate   in  regard  to    fishiog^in  such^ 
ri-»£rs!!!^iTi  t he  "jsxercisje'oT'^tS^^  v es±-ed__iii_iij 

that    is   to    sajr^    Tine  "question   is   v/hether,     in  the   exercise  of   such 
concurrent    jurisdiction,    the  state  may   regulate  the  taking  of   fish 
in  the  Mississippi    river  and  punish  a  violation  of   its    statutes, 
although   such  violation   is   committed  beyang  the  niriflLg  cfthg>  main 
navigail..g_chs-aael   of   suchlriver,  the  middle  of  the  navigable  channel 
being  the  boundary  line  betv/een  this    state  and  the  state  of 
Illinois.      See  preainble  to  the  Constitution,  v/herein  the  boundaries 
of  the  state  are  described   in  accordance  with  the  act    of   Congress 
admitting  the  state   into  the  Union. 

The  concurrent    jurisdiction  of  this    state  over  the  waters 
of  the  Mississippi    river  without    regard  to   the  boundary  line  be^ 
tween  this    state'  and   any  adjoining   state  v/hich  is   asserted   in  Code, 
section   3,  is   dependent    upon  the  act    of   Congress   admitting  the 
state   into   the  Union,     which  contains   the   following  provision:    "The 
said  state  of   Iowa   shall    have   concurrent    jurisdiction  on  the   river 
Mississippi   and   every  other  river  bordering  on  XJie  said  state  of 
Iowa,     so    far  as  the  said   rivers  -siiall    form  a   common  boundar;,-  to 
said   state,     and  any  other  state  or  states   nov/  or  hereafter  to  be 
formed  or  bounded  by  zhe  same;    such  rivers   to  be  common  to   both." 
Act   March   3,    1845,     chapter  48,     5   Stat.    742,     amended  as  to   boun- 
daries by  Act   Aug.    4,    1846,     chapter  82,     9   Stat.    52.      A  similar  pro- 
vision was    found   in  the  statute   for  the  admission  of  the  state  of 
Illinois    (Act    April    18,    1818,     chapter  67,     3  Stat  .   429).    and  the  con- 
current   jurisdiction  of    lov/a  and    Illinois   over  the  Mississippi 
river  so    far  as    it    constitutes   the  boundary  between  the  two    states 
is   dependent    upon  these  provisions.      In  applying  them  it    has  been 
held  by  this   court   that   the  jurisdiction  of  this   state  does   not 
extend  to    abatement   of  a  nuisance  on  the   Illinois   side  of  the  river 

5263 


The  Extent   of  the     Authority  oi"  the  State  3 

consisting   of  a   pernianent    structure  en  that    side    (Gilbert   v.    Molinc 
■Vater  Power  &  IiiLfK.    Co.,    19    Iowa,     519;    huck  v.    Elienbolt.    84    lo'.va, 
394),    but    doec    extend  to    a   criminal    nuisance   committed   on  a   coat 
in  the  river,     although  such  boat    v/as   at   the  time  moored  to   the 
Illinois   shore;    State  v .   Mullen,     35   lov/a,    199.     The  case  last    cited 
irj    relied  upon  bv  tlie  state  as   sustaining   its    jurisdiction  to    regu- 
late the  takine-;  of   fish  in  the   waters   of  the  river   in  any  portion 
thereof  between  the   lov/a  bank  and  the   Illinois  bank  of  the  strear.. 
And   it   must   be   conceded  that    this    contention  is    strongly  supported 
by  the  case  last    cited;    fo*-,     if  the  Legislature  of   Iowa  may  by 
statute  determine  what    is   a  nuisance  and  provide   for  the  punishment 
of  a  violation  of  such  statute   committed  anyv/here  on  the  v/aters  cf 
the   river  between  the  tv/o   states,    tHen   it   may  prescribe  wA-t    shall 
constitute  the  unlawful   taking  6"f  fish  in  riny  portion  of  the  river 
and  punish  the  violation  of  such  statute,     although  committed  out- 
side of  the  boundaries   of  the  state,    tiiat    is,     east   of  the  middle 
line  of  the  main  channel.  On  the  other  hand,     it   must   be  admitted 
that    a  serious   question  is   here   involved,    for,     if  the  contention 
of  the  state   is  to   be  sustained,    then  those  persons    v/ho   on  the 
Illinois   side  of  the  river  engage   in  the  business   of   fishing   in 
full    compliance  v/ith  the  lav/s   of   Illinois  may  nevertheless  be 
subject   to   punishment    if  they  have  not    als^o    complied   v/ith  the  lav;s 
of   lov/a.     Taking  this   case   for  an  illustration,    and  assuming  that 
there   is   a  statute   in   Illinois   similar  to  that   of  tnis   state   re- 


le 

by  the  laws  of  that    state  would   still   be  punishable  under  the  lav/s 
of   Iowa   if  he  had   not    complied   v/ith  our    statute  by  paying  the 
annual   license  req,uired  by  the  lav;s   oi    this    state. 


Court  

222    (93  N.    W.   1111,     65  L.    R.   A.    9537"^      In  tnat    case  ti'.e  conclusion 
of  the  majority  of  the  court    v/as  that,  under  provisions   as  to    con- 
current   jurisdiction  similar  to   those   involved   in  our  own  case  of 
St  at  e  V  .   Mul  1  en,    the  states   of  Minnesota   and    .'/isconsin  ccvJd   reg- 
ulate   fishing   in  that   portion  of  the  Mississippi   river  forming  the 
boundary  between  the  two    states  only  so    far  as  the  v/3.ters   of  the 
river  were  v/ithin  the  actual   territorial    limits   o'f  the  state;    that 
is   to    say,    the   right   to    regulate   fishing  on  the  west    side  of  the 
center  of  t^he  channel   v/as    exclusively   in  the  state  of  Minnesota, 
while  the   right    of  regulation  o  n  _t  he   east    side  of  that    imaginary 
and  uncertain  line  v/as    exclusiveljr__in  the  state  of    .Visconsin.    In 
the  majority  opinion  an  attempt    is  made  to   define   concurrent    jur- 
isdiction as    relating   "   to   matters   at    least    in  seme  v/ay   connected 
with  the  use  of  the  water   for  navigable  purposes,  to   things   afloat, 
or  in  some  legitimate  sense  on  the  water  -  things   diffic-ilt   to 
deal   with  if  it     vere  necessary  to   detenriine   in   each  instance  of 
the  exercise  of  jurisdiction  the  precise  location  of  the  particular 
act    involved   as   regards   the  boundary  lin^  "    v/ith  the  result   that 
"it   does   not    include  tlie   right   tc    regulate  the   enjOT?:iient,    by  the 
people  of  one  state  v/ithin   its  domain,  of  the  right   to    navigate  or 

5263 


The  Extent    of  the  Authority  of  the  State.  ^ 

fish.    It    does    not    empov/er  one  state  to    spread   its  mere  police' 
regulations   over  territory  of  another,    regulating  the  sovereign 
property   right    of  the  latter   in  or  to   the  v/at  er  flowing   over  such 
territory,     or  to.  the   fish  therein  or  fov/ls  therecn,     v;hich  it    holds 
in  trust    for  the   enjoyment  of  the  whole  people   v/ithin  its  boundar- 
ies,    in  their  individual    capacities,     imder  such  legal    restraints 
as   such  other,     in   its   legislative   wisdom,    nay   see   fit   to    ir.pose, 
so  long  as   such   enjojment   dees   not    interfere  unlawfully  with  like 
enjoyment   by  the  people  of  the   state  on  the  opposite  side  o  f  the 
boundary."   But    in  the  dissenting  opinion  attention  is    called  to 
the   impossibility  of  distinguishing  between  criminal   and  police 
legislation  of  the  state  addressed  to  the   subject   of_  catching  or 
d< 

01 


tending  over  the  boundary  v/aters   and  the   enforcement   thereof   in 
the  manner  prescribed  by  such  legislation,     whether  by  courts  or  by 
executive  officers. 


i-f* 


In  short,    we   reach  the   conclusion  that   the  views    expressed 
by  the  majority  of  the  Supreme -Court    of   'A'isconsin   in  the  case  o; 
Roberts   V,    Fullei-ton     are   inconsistent   t/ith  those   expressed  by 
tnis   court    in  State  v.   IJullen.     supra,  and   aga  i  nst    t  he  s  ub  st  ant  i  al 
weight   of  authority,     f^ae  trial    court-    erred,    therefore,     in  making 
the  conviction  of  the  defendant    in  this   case  dependent    upon^  a 
finding  of  the  jury  that   th'e'act    v/hich  he  v;e^   c hg, rged   with  having 
committed    in  violation  of  the,  lavre   of  the  dt  at  e  with  regard  to 
fishing  was   coi:nnitted  on  tlaat    portion  cf  the  liississippi   ri^er 
west   of  the  boundary  line  of  the  state. 


Reversed 


State  V.   Bennett  . 
Supreme   Court   of   Iowa,    13^2^    14    Iowa  479. 

"The  defendant    -.vas    indicted   for  stealing  a  horse.      The   court 
below  charged  the  jur^*-,  that    if  the  horse  was    stolen  by  the  de- 
fendant   in  the  State  of  Missouri,  and  brought   by  him   into    Vfepelic 
county,    that    he  might   be   indicted   and   convicted   in  thi<?    state.  This 
ruling  is  the  error  assigned." 

Baldwin,     C.   J 

Mr.   BishoTD,     in  his   late  work  on   Criminal   Lav/,     refers   to   the 
conflict    of  authorities   on  this   question,     and   showc:   clearly  the 
fallacy  of  the  reasoning  of  the  judges   who   hold  that,   the  courts  of 
the  St?te  to   which  the  stolen  property  has   been  taken  cannct   take 
jurisdiction  of  the  offense.      He  says: 

5263 


The  Extent   of  the  Authority  of  the  State.  5 

"Our  courts   can  try  all    offenses   against    our  la-vs,    and   if  a 
man  has   property   in  his   hands   here,    they   can   inquire  wliat    legal 
relation  he  sustains  to   this   property;    and   if  it    came  v/ith  him 
from  a   foreign  country,    the   relation  he  sustained  to    it   thez-e 
establishes   his    relation  to    it    he;:^.      This    is    familiar  lav;,     undis- 
TDUted,    practised   upon  daily   in  all   our  tribunals    in  the  ordinary 
matters  of  litigation.   The  proposition  that    a  rnan   is   to   escape 
punis}ament    for  the  violation  of  our  laws  because  he  first    I'-iclated 
the  laws   of  a   foreign  country,     is   absurd    in  itself,     and  mischievous 
in  its   practical   application.   Nothing   is   plainer  than  that    v/hen 
a  man  is   found  here  wit2L,Pi'<^ps^y.    ° ^-^?U.2£}iH^-l-— '^^^Lt   i^iquire  after 
the  owQQX—JOX^it,     equally7wh  ether  such'oT7n^r''TsaTreged  to  be'  a 
fareigner  or  citizen,    present   pei'sonally  or  absent,      nothing   is 
plainer  than  that   our  Courts    will   protect  the  right   of  property 
equally  whether  the  property   is   in  the  owner's   grasp,    or  \';rongfully 
found   in  the  grasp  of  the  felon.   And   no    principle   is  better   estab- 
lished as   a  general    doctrine  than  that    any  physical    removal,     how- 
ever slight,     of   the  entire  physical    substance  of  the  thing  alleged 
to   be  stolen,    to   v/hich  physical    substajice  the   remover  has   not   th_e 
right   of  possession,     even  though  he  has    it    in  his   custody,    lawfully 
or  unlawfully,     is,    where  the   felonious    intent    exists,    larceny.    If, 
therefore,    the  complete  offense   is   not    committed  here,    by  one  bring- 
ing  here   from  a  foreign  country  personal    goods    v/hich  he  has  there 
stolen,     using  them  here  as   his   own,    meaning  at   the  same  time  here 
to   deprive  the  owner  of  his   ownership  therein,    then   it    is    impossible 
for  any  man,    under  any  circ-jmstances,    to   do   acts    completely   falling 
7/ithin  all   the  descriptions   and  definitions  given  in  the  bocks   of 
this   offense." 

In  answer  to   the  objection  that    it    renders  the  prisoner  liable 
to   be  twice  convicted  and  punished   for  one  offense,  in  violation  of 
the  spirit   of  the  common  law,    the  author  says:    "The   common  lav/ 
either  admits  of  tv/o    convictions,     in  such  a   case  or   it   does   not;    if 
it    does,    there   is   nothing    in  tfib  objection;    if   it    does   not,     then 
the   first    conviction,     in   what    e^/er  locality   it   takes'  place,  may  be 
plead    in,    bar  of  the  second.      The   common  law,     hov/ever,     knov/s   no 
such  plea   in  defe'tf^e  of  a  prosecution  as   liability  to    an   indictment    V 
elsewhere."  '  /^ 

1   Eish.    Grim.   Law,     596,     597. 

Affirmed. 


526  3 


/ 


Section  2. 

Extradition 

If  the  state  in  which  the  accused   is    found  has   not' the  power 
to  trj*-  him  for  the  crime  of  which  he   is  accused,    the  question 
arises   whether  the  state  or  nation  in  which  such  person  could  be 
tried   for  the  offense,  has  the   ri^ht   to   aak  the   first    state  to 
arrest   the  accused  and  deliver  hin  over  to  the  second   state   for 
trial  by   it.     The  surrender  of  an  accused  person   in  this   way   is 
called   extradition:    and   where   it    is  between  the  states   of  the 
Union   it    is    frequently   referred  to    as    interstate   rendition.   The 
demand   for   extradition  is   called  a      requisition. 


St  at  e  V ,    xluf  f  o  rd  , 

Supreme   Court   of   Iowa,     1869.    28   Iowa    391. 

A  person  was   arrested   in  this    state  as   a   fugitive   from 
justice  on  the  charge  that    he  had,  committed  murder   in   Illinois, 
He  was  taken  before  a   justice  of  the  peace  v/here  he   entered   into 
a  bond   for  his   future  appearance.      Upon  default,     suit    was  brought 
against    him  and  his   sureties   upon  thig,  bond.      From  a   judgment    for 
the  plaintiff,    the  defendants   appealed. 

Beck.     J.    -     The   cause  was  tried   upon  the  following   evidence: 
1.   The   info  imat  ion  upon  which  the  warrant    was    issued.      It    charges 
substantially  that    defendant,     Jeremiah  Hufford,     is  guilty  of  the 
crime  of  murder  in  the  second  degree,     committed    in  Knox   county, 
Illinois,    by  producing   an  abortion  upon  one  L  .1 .    Strayer,    a 
pregnant    woman,    which  caused  her  death.      It    contains.no    averment 
that   the  accused   is    charged   v/ith  the   crime   in  the   county   and   State 
where   it    was    committed,  and'^contains   nothing   further  than  the  alleg- 
ations  of  the  commission  of  the  crime  by  the  accused,    and  the  place 
time  and  manner  of   its    commission.      2,  The  warrant    in  the  usual 
form,      3,   The  docket    of  the  justice  before  v/hom  the  proceedings 
were  had,     showing  the   issuing  of  the  warrant,  the  arrest    and    custody 
of  the  accused,       his   ap-olication   f  o  r  a   continuance  of  the   examina- 
tion,   the  order  tlierefor,    the  approval    of  the  bond,     the  defa^olt    of 
the  accused,    and  the   forfeiture  of  the  bond.      4.   The  bond   sued  upon 
5.  The  testimony  of  the   justice  that    no      other   format  ion,  affidavit, 
evidence,     statement    or  paper  of  any  kind  was   presented  to   or  filed 
with  him  in  the  proceedings, 

v/e  find    in  the   record  the  deposition  of  a  v/itness,    who   testi- 
fies that    he  was,    at    the  time  the  alleged   crime   was   cominitted, 
the  coroner  of  Knox   coun-^,     Illinois,    and  that    he  held  an   inquest 
upon  the  body  of  a   v/oraan  named  L,L.   Strayer,    then  deceased.      He 
states   the   facts   of  the   impaneling  of   a   jury,  the   exam.ination  of 
witnesses   as  to   the   cause  of  the  death  of  the  woman,     and  that   the 
jury   rendered  a  verdict   that    death  was    caused  by  an  abortion  pro- 
duced by  the  accused.      He   sets   out    in  his   deposition  a   copy  of  the 

5263       ■  " 


Extradition.  7 

verdict.     This   deposition,    v/ith  that    of  another  v/itness,    v;as 
suppressed,    because,    as   the   court    held,    the   evidence  contuined 
therein  v/as    irrelevant,  immat  erial   and   Recondarj'-.      ITo  object  ion  v/as 
made  to  this    ruling  by  the  plaintiff.    We  cannot    deternine  the 
sufficiency  of  this    evidence,    nor  could   v/e,    should   it   be  held 
sufficient,     consider  it,    as   it    v/as    excluded  by  the  court,    \.'ithcut 
objection.  *" 

These  depositions   answer  no    useful    purpose   in  the  record, 
further  than  forming  the  basis  of  a  supposition  that    evidence  may 
exist,    not    used   upon  the  trial,    that   the  accused  was,     in  Illinois, 
legally  charged  by  the  verdict   cf  a   corcner^s    jur\'  v/ith  the  offense 
for  vahich  he  was   arrested. 


The  proceedings   v/ere   instituted   under  sections   4523^    4523  < 
the  Revision,  The  first    of  the  sections    is    in  the  follov/ing  wor< 


of 
irds 

"If  any  person  be  found    in  this   State  charged   with  any  crine 
committed    in  any  other  State  or  territory,    and  liable  by  the  Consti- 
tution and  laws  of  the  United   States,  to  be  delivered  over  upon  the 
demand  of  the  governor  thereof,    any  magistrate  may,     upon  complaint 
on  oath,     setting   forth  the  offense  and   such  other  matters   as   are 
necessary  to  bring  the  case  v/ithin  the  provisions  of  the  law,  issue 
a  warrant   to    arrest    such  person."     The  other  sections   provide,    that 
if  it    is    found  upon   examination  that    there   is    reasonable  cause^to 
believe  the   complaint   true,    and  that   the  accused  may  be  la'wfuliy 
demanded  of  the  governor,  he  shall,     if  not    charged    with  murder,  ^be 
required  to    enter   into   an  undertaking  to   appear  before  the  magis- 
trate at    a   future  day,    and  abideliis  order. 

The  undertaking   is    forfeited  by  a  failure  to   appear  according 
to    its   conditions.    It    was    ruled  by  this   court    in  this   case    (23  Io\va, 
579),    that,  under  the  provisions   of  the  statute  above  cited,  the 
jurisdiction  of  the  magistrate  need  not   appear   in  the        information, 
but   may  be  presumed   upon  demurrer  to   the  petition   in  an  action  upon 
the  bond,    and  that  the  v/ant   of   juriadiction  on  account   of   insuffi- 
ciency of  the  proceedings   may  bo  set    up  as   a  defense  and  proved 
upon  the  trial  • 

It    was   also    ruled,    that   the  accused,    being   arretted  on  a   charge 
of  murder   in  the  second  de^ee,    a  bailable  offense  under  the  lav/  of 
this   State,    was,     if  the  magistrate  had   jurisdiction,    properly  ad- 
mitted to  bail    upon  the  undertaking  which  is  the  foundation  of  this 
action.     The  first    question  presented   for  determination  is  this: 
Did  the  magistrate,    as   showi  by  the   evidence,    have  jurisdiction  in 
the  cacjB? 

The  provisions   of  the  statute  above  cited  authorize  the 
arrest   of  persons    "found    in  this   State  charged   with  :?A~iy  crime 
committed   in  any  other  State  or  territorvii    and  liable  by  the 
Constitution  and  laws   cf  the  United   States  to   be  delivered  over  upon 
the  demand  of  the  governor  thereof,  "    etc.      V/e  understand   from 
this  language,    that,    tc   autlioriae  the  arrest,    tliere  must   be  a 

5253 


Extradition  3 

charge  pending  against   the  accused    in  another  State  cr  territory. 
This    construction   is  nade   entirely  plain  by  article   4,     section  2 
of  the  Constitution  of  the  United   States,     which   is   as    follov/s: 
"A  person  charged    in  any   State  with  treasoii,     felony,    or  other 
crime,     who    shall    flee   from   justice  and  be   found    in  another  State, 
shall,    on  demand  of  the   executive  authority  of  the  State  fron  v/hich 
he   fled,    be  delivered   up,    to   be  removed  to   the  St  at  e  hav  i  ng   .juris- 
diction  in  the   cause." 

The  act    of   congress,  12th  February,     1793,     section  1,    providing 
for  the  removal    of  fugitives    from  justice  from  a  State  wh'ere   found 
to  the  State  where  the  crime  was    committed,  prescribes  tiiat   the 
executive  authority  demanding  the   fugitive  sliall    present    an   in- 
dictment   or  affidavit    chargin^the  accused  v;ith  the   crime,     v/ith  hir; 
demand   upon  the  governor  of  tne  Sta^e,     v/here  the      fugitive   is 
found,     for  his    returji,.      The  provision  of  our  statute,     above   quoted, 
provides    for  the  arrest    of  persons,     v/ho    "are  liable  by  the    consti- 
tution and   lav/s   of  the   United   States  to   be  delivered,  "    upon  the 
demand  of  the   executive  of  the   State  v/here  the  alleged   crime  was. 
committed .   The   Constitution  and   statute  of  the   United   States,     as    it 
appears  by  the  provisions   above   cited,     require  the  accused   to   be 
delivered   up  when   charged   v/ith  the   crime   in  the  State  v/hero   it    was 
committed.      It    is    quite   clear  that    our  statute,    being   enacted   in 
aid  of  the  foregoing    constitutional    and   statutory  requirement   of 
the  United   States,     contemplates  that    a  charge  of  the   crime  against 
the  person  to   be  arrested' and   delivered   up  must   be  made   in  the 
State  v/here  the  offense  was    committed. 

This    charge  must   be  made  to    some   court,    magistrate  or  officer, 
in  the  form  of  an  indictjjifint,     information,     cr  other  accusation, 
Vno'.vn  to   the  law  of  the  State   in  v/hich  the  offense  v/as   comr.iitt  ed . 
iVe  conclude,    therefore,  that    unless  the  accused    in  thir   case  was   so 
charged,    the  magistrate  had   no    jurisdiction.      Bx  -parte  Smith, 
3  McLean,     121;    S>:  parte   Clark.     9   V/end .    212;    Matter  of   Hay  ward, 
1    Sand:^    701.     ,_ ' 

The   evidence   upon  which  this    case   was  tried   contains    no 
proof  that   the  accused   waschargGd   \viththji_cxime   in   Illinois, 
v/here   it    is   alleged  to    have   6^.^n  bonwifTed.  The   jurisdiction  of 
the  magistrate   is    neither  averred   in  the  cont)laint    or  information, 
nor  shov/n  by  the   evidence;    it    cannot  be  presumed.      V/e  must    regard 
the  proceedings,  therefore,    as  void,    "^ 

It    is   argued  that   defendants   are   estonped  to   deny  the  juris- 
aiction  of  the   justice  because  they  voluntarilv   executed  th(^  bond, 
ihe   pygpnf    nf  r^p^^^^^q^     ■ly^  g^   criminal    -proceeding,     will    not    confer 
■-"'^^¥^,g;^iO-V^  1'i^e  voluntary    exSfi'dtion  of  the  bene',     in  this    case, 
could   not.      If   jurisdiction  was   v/anting,    the  magistrate  }iad   no 
authority  to  take  the  bond,     for  there  was,  in  the  view  of  the  law. 

J^nJ^^f •^'"''^J^^'"-    l^^  *^^  proceedings  therein,     including  the 
bond,  being  void  and  held   i'or  rj^ught . 

Reversed. 


5263 


Extradition  ^ 

Morrison  v.   Dwer. 
Supreme   Court   of    Iowa,    1909.   143   Iowa   502. 

The  plaintiff,    having  been  arrested   under  a  warrant   of  the 
governor  directing  his   surrender  to   the  defendant    as   agent   o     the 
iovernor  of  Nebraska,    petitioned   for  a  write  of  habeas    corpus. Tne 
|?.lt    was  denied  and  the  pUii^tiH^EE.^^!  ^d ,     Another  ^c%^^^^J•°lJ^^ 
the  same  facts   was   disposed  of  by  the  Supreme  Court    at   tne  sane 
t  ime . 

I^cClain     J.    -   Requisitions   of  the  Governor  of  Nebraska  for  the 
surrender  of  the  i^etitioners   were  presented     to   ^the  Governor  of 
Iowa.  and.    after  a^  hearing,  by  the  latter,    of  whicn  no    complaint    is 
made      except    with  reference  to   the  sufficiency  of  the  requisition 
papers      wa-rrants    were   issued   for  their   surrender  to   tne  agent    of 
the  state  of  Nebraska.     To   lorevent   such  surrender  these  proceedings 
were   instituted.      The  refusal   of  the,  lower  court   to   grant    a  writ   of 
habeas    corpus  Ks   assailed   in  this   court    on  three  grounds:      First, 
the  insufficiency  of  the  comT)laints   filed  before  the   county   judge 
in  Nebraska,     in  which  each  of  the  petitioners   v;as   charged  with  the 
commission  of  a  crime   in  that    state;  second,    the   insufficiency  of 
the  certification  of  a   copy  of  such  complaint   by  the  Governor  of 
Nebraska;    and,    third,    the   insufficiency  of  the  evidence  to   sloow 
that    petitioners    were    in  fact    fugitives    from  justice. 

I.  The  complaint    charging   petitioners   with  the   conmission  of 
a   crime   in  Nebraska  v;as   sworn  to   by  the   county  attorney  of  the 
proper  county,    and   it    v/as   made  to   appear  that  this   v/a^s  the  proper 
method    in  that    state  of   charging   persons    witJi  the  crime  of    ./hich 
petitioners   v/ere  accusedj^  A   complaint    or   infcrmat  ion,  duly  sv/orn  to 
is   such  affidavit    as    i"S"required  ** 


proceeding,     if   it    is   a     proper  method  of   charging  the  commission 
of  the  crime   in  the  state  where  committed.      In  re  Hooper,    52   Wis^ 
699    (58  N.    W.    741);    State  v.   Richardson.     34  Minn. 115    (24  N.    W.    354); 
State  V.   Bates.  101  Minn.    3o3   (112  it.    Y/.    261 }  . 

Appellants    contend  that    a   complaint   by  a  county   attorney   is 
necessarily  on   information  and  belief,  and  that    such  an  affidavit 
is    not    sufficient.      But   the   complaints    in  these   cases   were   not 
sv/orn  to    as  true  only  on   information  and  belief.      The  allegations 
of   fact   therein  are  sworn  to    as  true  without    qualification,     and   it 
is   not   for  us  to   say  that   the  county  attorney  swore  to  the  truth 
thereof  onl:/  on   information  and  belief.      If  sufficient    in   form  a 
court    can  not    inquire  as   to   the  knowledge  of  the  affiants   ae   to   the 
facts,  -"^ 

It    is    further  contended  tliat   the  certifications   of  these  com- 
plaints  are   not    in  such   form  as  to    entitle  them  to   be   introduced 
and    received    in   evidence   in  another  state,     under  the  state  and 
federal    statutes    relating  to    certification  of  the   records   of  judi- 
cial   proceeding;^ .      But    there   is    no   merit    in  this   objection.    Peti- 
tioners themselves   offered  these   certifications    in   e-^idence   in  the 

5263 


Extradition  10 

lower  court.      The  defendants   were   under  no   obligation  to    do   riore 
than  shov/  a   certification  of   copies   of  such^^rnplaints  ty  the 
Governor  of  iJetraska,      See  Rev.    3t  .    U,   S.    section  5278    (U.    3.    Comp. 
St  .   1901,  3597)  . 

II.  Eut    it    is   argued  that,     if  the  complaints   were   not    duly- 
authenticated,    they  could   not   be  properly   certified  as   authentic  by 
the  Governor  under  the   federal    statute   requiring  that    he  certify 
the  authenticity  of  the  complaints   on  which  the   extradition   is   de- 
manded.     There   is   nothing   in  the   federal    statute  specifying  how 
the  Governor   is   to   be   satisfied  tliat   the   ccniplaints   on  which  he 
acts   are  authentic.      That    is   a   question   for  his   own  determination. 
His   certificate  to   the   fact    alone   is    required^.   If  the  proceedings 
are  regular  in  form,  it    is    for  the  person  atTacking  them  to    show 
that    he   is   not    a   fugitive   from  justice.   McITichols  v.   pease,  207  U.   S. 
100    (28   Sup.    Ct.    58,     52  L.   Sd.l2l);    Pierce  v.    Greecy,     210   U.S.    387 
(28   Sup.    Ct  .    714,     52  L .    Ed.   Ill  3>  . 

III.  While  the  petitioners   attempted  to    show  by   evidence  t_hat 
thej''   were   not    in  Nebraska  at   the  time  the  crime  with   which  they 
were  charged   v;as    comm.itted,    there  v/as   ample   evidence   foi'  the  de- 
fendants to   prove  the   contrary.    In  a  pi-oceeding  hy  habeas    corpus 
the   finding  of  the  lower  court    as   to    questions   of   fact    has   the 
force  of  a  verdict    of   a   jur;/,     and,     if   supported  by  any   evidence 
is   conclusive  upon  this    court    as   to    such  questions,   Myers   v. 
Clearman.  125    lov/a,     451;    Dunkin  v.   Seifert,    12  3  Iowa,     6?. 

Finding  no  error  in  the  rulings  of  the  lower  cou:^  complained 
of,  the  action  of  the  court  in  each  case  denying  plaintiff's  peti- 
tion for  writ    of  habeas   corpus    is   affirmed. 


Jones   and  Atkinson  v.   Leonard. 
Supreme   Court    of    Iowa,    1878.    50    Iowa  106. 

The  plaintiffs    were   indicted    in  the   State  of  Massachusetts 
for  the  crime  of   false  pretenses.  The  plaintiffs   were   in  this   state 
at   the  time  of  the   commission  of  the  offense   in^assachusetts,    but 
on  the   requisition  of  the  governor  of  Massachusetts,    the  governor 
of   Iowa   issued  a  warrant    for  the  arrest    of  the  plaint  if  fn^  and  their 
delivery  to   an  agent    of  the  governor  of  Msissachusetts .   The  defen- 
dant  made  the  arrest    and  the  plaintiffs   petitioned   for  a   writ   of 
habeas   co  mus  .      The  plaintiffs   were  discharged   from  custody   and 
the  defendant    appealed. 

Seevers.     J     -  The  learned   judge  of  the   Circuit    Court    discharged 
■t|}e  plaintiffs   from  custody,     as   we   infer,    on  two   grounds:    First. 
that   the  plaintiffs    were  not    in   fact    fugitives    from   iustice,     for 

526  3 


Ejctradition. 


11 


+  ^e   T-eason  that   thev  had   never  fled;    £,nd.  second,    the   evidence  accom- 
^anvinp  the   reauisition   failed  to    shov;  they  ".vere   sucn;    and   appellees 
rpai'niy.     if  net  *enti rely,     rely  thereon   for  an  afa^mance.    It    is   not 
c'.  8imed  the  r)laint4-ffs   v/ere   ever  even  temporarily   residents   of  the 
State  of  Massachusetts.   At   the  tine  the  alleged   crime  was    comnitted 
they  'vere  citizens   of  and   residents   of  this   St at^ ^ 

The   false  pretense  was    contained    in  a  letter  written  by  then 
in  this    State  to    certain  persons    in  Boston,     in  '.vhicn  it    was    stated 
thev  ov/ned  a  large  amount    of  property  over  and   atove  their   indebt- 
edness,   by  means"  of  which  they  obtained  on  credit    certain  merchan- 
dise. 

The   Constitution  of  the  United  States   provides  that    "a  person 
charged   in  any  State     vith  treason,  felony,    or  other   crime,     v/ho 
shall    fl  ee   £rom  justice  and  be  found    in  another  State,     shall,    on 
demand  of  the  executive  authority  of  the  State  from  v/hich  he  fled, 
be  delivered  up  to   be   removed  to   the  State  having   jurisdiction  of 
the   crime,  •• 

It    is   rircvided  by  a  statute  of  this   State  that   the  requisition 
of  the  Governor  of  another  State   "shall   be  accompanied  by   sv,forn 
evidence  that   the  Tsarty   charged   is   a   fugitive  from  justice,"    Code,     ( 
4174.  "         '■ ~ 

The  sv.om  e^/idence  accompanying  the  requisition  consisted  of 
an  affidavit    in  which  it   was   stated  the  plaintiffs    "are   fugitives 
from  justice."      There  are  grave  doubts    v/hether  such  a  statement    con- 
stitutes the   evidence  required  by  the  statute,    .Vhether  the  plain- 
tiffs   were  such  fugitives    is   a  mixed   question  of  lav/  and   fact.   The 
latter  being   stated  or  ascertained,    a  legal    conclusion  would   follow 
or  be  based  thereon.      Instead   of   stating   facts,    the  affidavit 
staten    nothing  more  than  the  legal    conclusion  of  the  person  making 
the  affidavit.      The  statute  requires   the  Crovernor  to  determine 
v/hether  or  not   the  person  or  -cersons    are  fugitives    from,  justice. 
Sv/orn  evidence   is  to  be  submitted  to   him  to    enable  him  to   do    so. 
Such   evidence  may  be   in  the  foim  cf   affidavits.      But    instead   of  any 
fa Gt  3    L  e i ng   s t at  ed,     upo n  whi ch  an   i nd e-o end ent    j udgment    co ul d  be 
formed,    the  Governor  must    have   relied   wholly  on  the  legal    conclu- 
sion of  anothgTj^^^ 

It    seems   to   us   tnat   to    sanction  such  a  proceeding  v/ouid  be 
estaolishing  a  dangerous    precedent.      £v   issuing  his   warrant    for 
^he  arrest^  of  the  plaintiffs    it   mey  be  said  the  Governor  has   de- 
termined tnis    question.   3ut    this   does    not    conclude  all    inquiry  by 
tne  courts   as   to  the  sufficiency  of  the   evidence   u-con  which  his    con- 
0- us  ion  was  based.    It    may  be  conceded  that   the  affidavit    was   prima 
^^^^^     sufficient,    or  rather   it    v/as  the  -orcvince  of  the  Governor  to 
so    determine.      But   this   we  do   not   think   is    conclusive  u-oon  this   or 
any  other  ques-cion  connected  v/ith  the   extradition  of  the   citisen, 
T.xis  point    will  be   further  noticed   hereafter.      Conceding,     however, 
t-.at   the  determination  of  the  Governor   is    conclusive  as  to   the 
sufficiency  of  the  affidavit,    v/e  have  for  determination  the  question 
v/netner  the  plaintiffs   are   in  fact    fugitives    from  justice. 

5263 


2>ctradition  12 

Eouvier  defines   such  a  uerson  to  \,e   "one  who,    having   con- 
mitt  ed   a   crime   in  one   .jurisdiction,     goes    into    anotner   in     order 
to    evade  the  law  and   avoid  TDunis^ient"      (1   Bouvier's  La-.?  Diction-^ 
ar'/   '551);    and  the  Const  it  ut  ion  of  the  United   States   defines   eucn 
person  to'te  one   "v/ho    shall    flee   from  justice." 

It    is   difficult   to  .see  how  one  can  flee  who   stands   still. 
That    fhPTP  rr.u^x   ^^  ^n  actuRl    flA^-inp   ji^. th-ink   is    ■?''ppr"iy^ i^eGo^* — 
nized_by  the  Constitution  of  the  United  States.  The  words   "wno 
?han~?ie^"   do   no"t^T.nclude  a  person  who   never  was    in  the  coiuntrv 
from  which  he   is    said  to   have  fled. 

It    i?   urged,    however,    that   the  plaintiffs    were   constructively 
in  IJassachusetts   at   the  time  the  crime   is   alleged  to   have  'oeen 
committed,   and  that   they  have  constructively  fled  therefrom. 

In  The  People  v .   Adam.s,       3  Denio,    190,     it    v/as   held  that    a 
person  actually  a   resident    of  Ohio    co'old   commit    a  crime   in  Mew 
YorV     and   upon  his    coming  voluntarily   in  the  last    narked  State  he 
could  there  be  tried   and   convict_ed.      We  are  not    required  to    either 
approve  or  disa^^prove  the  doctrine  laid  down  in  this    case,     and   it 
will  "be  presumed  the  laws   of  Ma?sachusett s   are  the  same  as  those 
of  ITev/  Yor?.c  in  this    respect.      In  the   cited   case  the  defendant    went 
voluntarily   into  the  State  of  ITew  York,     and   it   might    v/ith  much  pro- 
priety "be  sfeid  that,    having   so   done,     he  v/as   amenable  to  the  laws 
thereof. 

The  question   in  the   case  at   bar   is  verj'  different.   Granting 
that    a   crim.e  m^ay  be  thus    com^iitt  ed.    the  question  before  us    is 
v/hether,  thejT,    the   Strte  of    lov/a   is  bound  to    surrender  a   citizen 
to  the  State   in  which  the  crime  was    ccrimitted?  This   depends   upon 
the  obligation  in  this    respect    imposed  bylihe   Constitution  of  the 
United   States.      Before   it    can  be  said  there   is    such  an  obligation, 
two  things  must    appear.   There  must   be   •/  First,     a   crime  charged; 
and,     second,    that   the  -oerscn  charged    il  a   fugitive   from,  justice; 
that    is  to   say,    "tha.t    he  has   fled   from  the  ^t at e   in  which  he   is 
charged   v/ith  the   crime  to    escape  punishment."/  Such  miist   be  the 
legal    effect   of  his   fleeing.      In  other    .vords,  he  must    have  been  in 
the  State,  committed  the  cryime,     and   fled. 

The  Constitution  of  the  United  States  does  not  reouire  Iowa  to 
surrender,  on  the  demand  .of  a  sister  State,  as  a  fugitive  from  Jus- 
tice, cn,ej//ho  only  constructively  has  fled  from  the  latter.  Kurd  on 
Habeas    GorpuS*-fg^:?ST7,     612.  

.      If  the  decision  of  the  Governor   is   final    and   conclusive  as  to 
t. lis    question,   it   must   be  sc-  as  to   all    questions  touching  the  ex- 
.r.-aioicn  of  a   citizen  under  the   constitutional   r-rcvision  above 
quoted.      Counsel    for  the  aiDpellant    concede  there'are   cases    in  which 
a  wriu^ci    habeas    corious  may  issue^  and  the  prisoner  be  discloarged. 
Jftp^f  r;;'.!^'^'  ^?:-'-t   ^^  \;-   ^curts   at   this   day   cannot  be   seriously 
queo.ioued.      nurd  on  Habeas    Corpus      2d  Ed.j,     621;    in  the  matter-  cf 
Manchester,    5   Cal .,    2  37;    Sc  X)arte  Smith.     3  LicLeaA,    121. 

526  3 


1  3 

Extradition 

The  Governor  of  this    State   is    not    clothed    with   judicial 
pcverl     anS  tTere   is   no    provi.  ion  of  t  he   Const  itut  ion  o^^la-.s  of 
?he  united   States   or  of  this   Otate  whxch  provides  that    ^is   de- 
tP^innt.ior^   isfinal    and   conclusive   m  the  case  o.   tne   extradi 
tion  of  thecrTiz^rTi 

In  the  absence  of  such  a  provision  we  hold  that   the  decision 
o^  the  Governor  only  makes   a  prima    facie   case;    .:-iat    it    is    ccape 
tent    for     the  courts,     in  a  proceeding  cf  fHTs   cnaracter.     "O    in- 
quire  into  the  correctness  cf  his   decision,    and  aiscnarge   .ne 
prisoner.  ^  Affirmed. 


St  at  e  V  .   Day . 

Supreme   Court    of   Iowa,    1882.    58    Iowa   678,    12  N.    '<V.    733. 

The  defendant    having  been  convicted  of  burglar;/,    appealed 
on  the  ground  that   the   court    was   without    jurisdiction  for  tne 
reason  that    he   was   arrested    in    .Visconsin  and  turned  over  to  the 
Iowa   authorities   without    a   warrant    and  before  any   complaint    was 
filed  against    him  in   Iowa. 

Rothrock.     J.    »    I.      After  the  trial    in  the   court   below  the 
district    attorney   and  the  attorney   for  the  defendant    entered   into 
the   following   stipulation.      "It    is   stipulated   in  tne  above   en- 
titled cause  between  defendant    and  the  district    attorney  of  the 
10th  judicial   district    of^  Iowa,    that    defendant    was   arrested    m 
Wisconsin,    before  any  complaint    or  irLd_ic_tment    v/as   made  or  filed 
against    him   in   lov/a,     or  any  v/here   else;    that   the  arrest    was   made 
without    anv  warrant    or  legal    process   and   on  susjiicion;    that   the 
arrest    was"  made  by  the  officers   of  Prairie  du  Chein   in     connection 
with  the  officers   of   Clayton  county,     Iowa;   that    defendant   objected 
to  being  taken  to    Iowa,     and   protested   with  the  officer  against 
being  arrested    in   Wisconsin  and  taken  therefrom  to    Iowa;   that   the 
said  officers   disregarded   his   protests   and  brought    him  within  the 
jurisdiction  of  said   District    Court,     for  the  purpose  of  having  _ 
an   information   filed  against    him  aj^d   a   v/arrant    issued  thereon   in 
Clayton  county,     Iowa;    that    defendant    was   held    in  custody,     under 
said   process,  being   a  warrant    issued   in  Clayton   county,     lovi^a,     on 
the  same  day  of  his   arrest    and   after  he  v/as  brought    into    Clayton 
county,     Iowa;    that    he  was    regularly   indicted  and   dvily  arraigned 
in  said   court,     and   plead   not    guilty  to   the   indictment  ,     Cn  the 
trial   the   foregoing   facts    appeared    in  the  testimony,     and  defen- 
dant  moved  the  court    for  discharge  of  defendant    before  the  case 
was   submitted  to  the   jury.         The  motion  was  overruled   and  defen- 
dant   excepted  to   the   ruling.      Defendant    was    convicted  by  the 
jury  and   sentenced  to    six  years    in  the  -Denit  ent  iary . 

5263 


Extradition  ^* 

"It    is   hereby   stipulated  to    subr.it   the   question  cf   juris- 
diction  raised  under  the  above   facts." 

It    is   contended  by   counsel    for  appellant   that   the  motion   for 
a  discharge   should   have  been   sustained. 

The  removal   of  the  defendant   to  this   State  without    warrant   or 
authority  may  have  been   illegal    under  the  laws   of   Wisconsin.    I. 
it    was.    the  parties   guilty  of    .vrong   are  amenable  to   the  lav/s   of 
that    State.     But   the  courts   of  this   State  will    net,     upon  a   tria^ 
of  an   indictment    upon  a  plea  of   net    s^uilxy.     inquire  as  to  J-ihe^-'^-er 
or  not    the  defendant    was   t)ro-Derly  or   improperly  brought    within  the 
jurisdiction  of  the   court.      A   party   cannot    clain  imtiunity  from  an 
offense   charged   upon  any   such  grot^d.    Counsel    eite  3t  at  e  v . 
Hufford,    28   Iowa,'  391,     in  support    of  the   claim  made  that   tne  de- 
Tendant    shouai   have  been  discharged.      In  that    esse  the  defendant 
was   arrested   in  this   State  as    a   fugitive   from  justice,     on  li^e 
charge  that    he  had   committed   a  murder   in  the  State  of    Illinois. 
He  was   taken  before  a^^ustice  of  the  peace  and   entered   into    a  bond 
for  his   future  appearance  s.nd  made  default,     and   suit    v/as  brought 
upon  the  bond.      It    was   held   that   there   co'old  be  no    recovery   upon 
the  bond  because   it   did   not    appear  t'nat   the  defendant    was    charged 
v/ith  the   crime   in   Illinois,    by  way  of   indictment,     information, 
nor  by  any  accusation  knov/n  to  the  law.      This   statement   of  the 
case   is   sufficient   to    show  that    it    has    no    application  to   the 


case  at   bar. 


j^f  firmed. 


State  V.   Kealy . 

Supreme   Court    of   Iowa,    1895,     89    Iowa   94,     56   i-T.W.   283. 

The  defendant    was    extradited   from  ITev/  Yq^  tc    Iowa  upon  an 
indictment    charging   him  v/ith  f  p"!  !^  e_X!^Pt.  enpep  -      Afterwards,     and 
without    giving  him  a   reasonable  opportunit:/  to   return  to   Hew 
York,    he  was  tried     here  on  an   indictment    charging  him  with 
forge^-.     The  defendant,    having  been   ccnvicted  on  this    charge, 
after^  motion  that    he  be  discharged   from  restraint    on  this    in- 
dictment,    appealed. 

"Rot hro ok.     J .    -  The  defendant    was    indicted   for  the  crime  of 
obtaining  money  under  false  nret  ens  es  .      After  the   crime  was 
committed,    he  left   this   state,     and   went   to   the  state  of  New  York. 
A   requisition  vjsis   made  upon  the  governor  cf  tha.t    state   for  the 
extradition  of  the  defendant,  upon  the  ground  that    he  had  been  in- 
dicted   in  this    state,     and   he   was    returned  to   this    state   in  pursu- 
ance of  the  requisition.      After  he  was  brought    tc  this    state,     and 

5263 


Extradition  15 

while  he  was    in  custody  under  t^iat    indictment,    he  Y/as    indicted 
for  forging  a  promissory  note.      ,Vhen  he  was  brouf';ht    into    court    on 
the  last    indictment,     he  made  a  motion  to   "be  discharged    from  re- 
straint   on  the   indictment    for   forgery,     on  the  ground  that    ne  v/as 
not    extradited  on  that    charge,     and  that,     ueing   in   restraint   on  the 
first    charge,    he  could   not   be   required  to   plead  to  the   second   in- 
dictment,   nor  could  he  be   restrained  of  his   liberty  by   reason 
thereof,    he  never  having  had  an  opportunity  to    return  to   the  state 
of  New  York.     The  court   overruled  the  motion,     and   required  the  de- 
fendant  to   plead  to  the   indictment.      A  plea  of  guilty  was    entered, 
and  the  defendant    was   sentenced  to    imprisonment    in  the  penit  ent  iai^j.' 
for  two   years  . 

It    appears    from  the  abstract    in  the  case  that    the  two    indict- 
ments   v/ere  founded  upon  wholly   different    and  distinct    charges, 
and,  as   we  understand    it,    they  did   not    involve  the  same  transaction. 
The  record  does   not    show  what    disposition  was  made  of  the   indict- 
ment   of  obtaining  money  under  false  pretenses.    It    is   stated   in 
argument   that   the  defendant    was   sentenced  to    imprisonment    for 
one  year  on  that    charge. 

The   question  presented  'for  decision   is   stated  by   counsel 
for  the  appellant    in  the   following  language:      "Can  a  party  taken 
from  one  country  or  state  to   another,    upon  proceedings   of   extradi- 
tion, legally  be  held  to    answer  to   another  and   different    offense 
than  that    upon  which  he  was   so    extradited,     without   being  given  an 
opportunity  to    return  to  the  state  of  his   asylum?" 

This   case  does    not    involve  any   question  of  international 
extradition.     The  defendant  »s    removal    from  the  state  of   Uevj  York 
to   tnis    state  was    not    procured  by  any   fraudulent   pretense  or 
representation  made  tc   him  for  the  TDurpose  of  bringing  him  within 
,ne   jurisdic-cion  of  our  courts.    It    is   provided  by   section  2. 
article  4,    of  tne  constitution  of  the  United  States,    that    "a  person 
chargea   m  any  state  with  treason,     felony  or  other  crime,    who    shall 
flee  from  justice  and  be   found   in  another  state,     shall   on  demand 
^LV^^   executive  authority  of  the  state   from  which  he    fled  be 
oS^rn     -.1^^  *°   ^^   removed  to  the  state  having   jurisdiction  of  the 
thJr;!.      ^!.''^!-P°    ^'^^^  of  this    constitutional    provision   in 
V^^  +u!   ?•      Ejctradition  was   not    resorted  to    as   a  means   of  r,rocur- 
l^S^tiir^^^"'''^l^^  *^'  defendant    in  this   state   for  the  purpose 
quest [oi^W^i'i^^  process    in  a   civil    action.     There   can  be  no 
thfr^ow^T.  tf  /    J  fP""^   ^"^"^  °^   ^°"^^    county,     in  this    state,     had 
thlrlwll  tL  ;?^*^?  L^""::?^    indictment    against   the  defendant,     and 
walon  ?he  ?1rst    ?nJ?^*    ^^    extradition   upon  that    charge  that   there 
hi  was   sentenJS  ^n  ihV^'^f '.    '^i^   counsel    states    in  argument   that 
indictment      anlt^^  i        penitentiary-   for  one  year  on  the  first 
ment   las  to   cSLence  artK'^r-    ^^•^^°  ^^^^^^   °"  *^^^^  ^^'^^"d   i^'dict- 

o26  3 


Extradition  16 

tine  and   o-nt)ortunity  had  been  given  after  his    release  en  the   first 
charge  to    return  to   lie;;  York,     from  v/hich  asylur.  he   was    lorcioly 
taken  on  the   first    charge. 

There   is   a   conflict    of  authority   upor:  this    question.      This 
court    is    committed  to   the   doctrine  t-:at,     •■''^'=r^    ^   pp^"^-'-    -j'^   ;^Tr.Y^P^r^  Tr 
charged    vvith  f,    c'^'"'^^,    the   courts   will    not    inquire   into   the   circum- 
st anc'gg'"T!ncrer   v/hich  he   haf^   "brought    into   this    j^tal  e,  dird-TTixhin  tne 
iuFTTrfTTrt.  inn  of  the  court,      state  v  .   koti^,    ^i  'luuvk,  4o'n      It    is  ' 
true  that   the  defendants    in  tnat    case  were  not   brou^'ht    to   this 
state   under  a   requisition     upon  the   executive  cf  another  state. 
They  were  arrested   in  the  state  of  Missouri   v/ithout   legal    v/arrant, 
and   after  being    forcibly  brought   to    this   state  they  v/ere   rearrested 
and   turned  over  to  the   civil   authorities,     and   indicted.    It    is   said 
in  that    case,  that,     "the  officers   ofthe  law  take  the   requisite  pro- 
cess,    find  the  persons    charged   within  the   jurisdiction,     L.r.c.  this, 
too,     without    force,     wrong,     fraud,    or  violence  on  the  part    of  any 
agent   of  ohe  state,    or  officer  thereof.   And   it    can  make  nc   differ- 
ence v.'hether  the  illegal   arrest    v;as  made   in  another  state  or 
another  government.     The  violation  of  the  law  of  the  other  sover- 
eignty,    so    far  as    entitled  to   weight,  would  be  the   same   in  principle 
in  the  one   case  as  the  other.  That    our  own  lav/s   have  been  violated 
is   sufficiently   shown  by  the   indictment.      ?cr  this  the__state  had 
a   right   to   detain  the  prisoners,     and    it    is   of  no    importance  how 
or  where  their  capture   was    effected."      In  the   case  at   bar  the 
Defendant    v/as   -oroperly   indicted,     and,     v/hen  process   was    issued  on 
the   indictment,     it    is   of  no    im-ncrtance  by  what    authority  he  was 
brought    into  this    state.      In  support    of  this   doctrine;      State  v. 
Stewart.     60    Wis.    587;    Ham  v .    St  at  e.     4  Tex.   Apn .   645;    State  v. 
^rewster,     7  Vt  .    118;    Sow's    Caser~l6  Pa.    St.    37;    State  v.    tVensel. 
77   Inct.    428;    Kerr  v.    TeovTerTTC    111.    627.      The  first   two    cases 
above   cited   are  founded  on   facts    substantially  the   same  as  the 
case  at   bar.      As   we  have   said,    there   is   a   conflict    of  authority 
upon  the  question.     The  cases   v/ill  be   found  collected   in  7  Am. 
and   Eng.   Encyclopedia  of  Law,     648,      We  have  no   disposition  to   de- 
^^r^.£^°^  *^^   ^^®  adopted  by  this    court    in  State  v.   Ross,     supra, 
and  the  judgment   of  the  district    court    -^s   Afirmed —  — 


Edmunds  v.   Griffin. 
Supreme  Court    of   lov/a,    1916.      177    Iowa    389. 

The  plaintiff,    having  been  arrested   uher  a   warrant   of  the 
governor  and   surrendered  to   an  agent   of  the  governor  of  Colo-ado. 
petitioned   for  a   writ  _oXJiabeas   corpus   to    secure  his    release,    on 
tne  ground  of  the   insufficiency  of  the   indictment    found   against 
mm  m  Colorado.      He  moved   for  a   co  nt  Ir^uanc  e  "^ft  he  t?roc  eed  ^  ngs  to 
enable  ram  to^ecure  the  attendance  of  v/itnesses   wh^'wculd  Drove 
an  alibi.     Tnis   motion  was    denied   and  the  plaintiff  was   not'  re- 
leas  ea.      He  appealed. 


Jbctradition  1' 

Deemer,     J.      -  Plaintiff  wn-._  indicted   oy  th^  grand   jur^  of 
Huerf^6-C5^nty.     Colorado,     for  tne   crime  of  nuraer.     Tne   indict- 
ment   was    in  short    form,     as    follows: 

"That   the  defendnet    did  then  and  there   feloniously     wilfully, 
deliberately,    premeditat  edly,       and  of  Cli3)nal  ice  afc  ret  hough. 
kill   and  murder  one  Pliny  ?.  Lester,     contrary  zc  the   .crm  Ox   tne 
statute,  "    etc. 

The   indictment    was    in   exact    conformity  v;ith  the  statutes  of 
Colorado,      See  Colorado    Statutes   of  19CS,     p.    577,     Section  ^956, 
r ead  i ng  as    f o  1 1  o v/s  : 

"Sec.    349.      All    excenticns    which  go   merely  to  the   form  of 
an  indictment    shall   be  made  tefore  trial,     and   no   motion   in  arrest 
of   judgm.ent   or  v/rit   of   error  shall   be  sustained   for  any_  matter  not 
affecting  the   real    m.erits   cf  the  offense   charged   in  sucn   indict- 
ment; no    indictment    shall   be  quashed   for  v/ant    of  the  words,     'v/ith 
force  and   arms,  '    or  of  the  occupation  or  ^olace  of   residence  of 
the  accused,     nor  by  the  reason  of  the  disqualification  of   any  grarxi 
Juror  or  grand   jurors;    and   in  any   indictment    for  murder  or  man- 
slaughter it    shall    not   be  necessary  to    set    forth  the  manner   in 
v/hich  cr  the  means  by   which  the  death  of  the  deceased   v/as    caused, 
but    it    shall   be  sufficient    in  every   indictment    for  murder  to    ciiarge 
that   the  defendant    did  feloniously]^    v/ilfully,     and  of  his  malice  _ 
aforethought    kill    and  murder  the  deceased;    and    it    shall  be   suffi- 
cient   in   every    indictment    fcr  manslaughter  to    charge  that   the  de- 
fendant  did   feloniouslv  kill    and   slav  the  deceased.    jG.   S-O     ^26; 
L.    '79,     p.    5C    J    1,     am.ending   G.   1.$    786,     R.    S.    p,236,    5     ISC,    1" 

At  the  time  tho   indictment    was    returned,    plaintiff  v/as 
not    in  the  state  of  Colorado,    but    had   come  to    Iowa,    where,     short- 
ly a:*'ter  the  return  thereof,    he  was    arrested,    and,    the  governor 
having  honored   a   requisition  frcm  the  governor  of   Colorado,     he   is 
turned  over  to   the  ag»ant   thereunto    appoint  ed,  and  this   proceeding 
was  to    secure  his   release   from  custody.    -.Shen  the   issues   were 
settled  by  pleadings,    plaintiff  filed"  a  motion   for  continuance,     in 
order  to    secure  the  attendance  of  v/itnesses  by   v/hom  he  could  prove 
an  alibi:   that    is,    that,    though  in   Colorado    at    the  time  the   crime 
is   alleged  to   have  been   ccmmitted,     he   vias   not    in  Huerfanc    County, 
but    in  Colorado    City  or  Denver,     and    could  not    have   committed  the 
offense.     Objections  to   this   were  made  on  various   grounds,    and  the 
motion  v/as   denied.      The  case  then  v/ent   to    hearing,    but    no   testimory 
v/as    introduced   save  to   present  the  records,  do cumeots    and   v/rits 
issued  by  the   executive  heads   of' the  tv/c    states,  and  the  Statutes 
of  the  state  of   Colorado,      These  all    ap-oear  to   be   in  proper  forn^ 
and  the  only   questions   arising  on  this' appeal    relate  to  the   ruling 
on  the  motion  for  a   continuance,    and  the"  sufficiency  of  the  indict- 
ment.    Other  matters   are  discussed,    but,     as   they  are  not    substan- 
tiated by  the  record,     we  shall   give  them  no   attention.     The  ruling 
on  the  motion  to    continue   was   largely  discretionary   v/ith  the  trial 
court.     The  requirements   of  the  statute  v.-ere  not    fullv  met,     and  on 

5263 


Extradition  -8 

this   ground   alone  the  motion  night    have   ceen  denied.      Aside   from 
this,    all  that    plaintiff   expected  to    show  by  the   witnesses    naned 
by  him  in  his   notion  was  that,     while  he  was    in  the  state  of 
Colorado   at   the  tine  the  offense   is    aaid  to   have  been   connitted, 
he  was   not    in  the   county   where  the  murder   is   alleged  to    have  been 
comraitted,     and,    therefore,     could   not    have   committed    it    -    in  other 
words,    an  alibi.      Such  a   shov/ing  would   not    entitle   him  to   a   re- 
lease.     He  ^vas   a   fugitive  here,     according  to    well-established 
rules,    and  the  question  of  his   p:uilt    or   innocence  must    oe  deter- 
mined by  the  courts  of  the  demanding   state.     This   matter  has   so^ 
recently  been  decided  by   us  that    we  need   do   no   more  than  cite_tne 
authorities    in  support    of  the  rule.      Leonard  v.    Zweifej^.    171    lov/a 
522;   Taylor  v.    Wise,    172    Iowa  1;    Harris   v.   Map.ee.  x 50    Iowa  l'±4. 

II.  Again,     it    is   aaid  that  the   indictment   against  the  peti- 
tioner lacks   the   essential    elements    necessary  to    constitute  a 
charge  of  murder.      It    does    follow  the   Colorado    statute,     although 
it    would  doubtless  be   insufficient    under  our  law.      iiut   the   indict- 
ment   is  to  be  tested  by  the  law  of  the  place  where  found.    Recog- 
nizing this   principle,    the  petitioner,     nevertheless,     contends   that 
the   Colorado    statute   from  which  v/e  have  quoted    is   unconstitutional, 
in  that    it    de-orives   rsetitioner  of   due   process   of  law,    of  the   right 
to    know  what   the  offense   is  that    is    charged   against    him  and   ail 
the  particulars  thereof. 

It    is   also    claimed  that    such  a   statute   is    in  contravention 
of  the  Bill    of  Rights   of  the   Federal    Constitution  and  of  the 
Constitutions   of  both  states,    and    is    unreasonable  and   arbitrary 
and  should  be  so   pronounced  by  this    court.     This   statute  has    re- 
ference to- procedure  cnl;?-,     and  to  the   form  of  an   indictment    for 
murder.      It    is    v/ithin  the  power  of    each  state  to    regulate   its 
ov/n  procedure,  and   a  statute   for  this    purpose  must    clearly  offend 
against    some   constitutional    provision  before   it    will   be  declared 
void  by  the  courts.    Counsel    ha-'^e  not    pointed  out    any   constitu- 
tional  provision,     either  state  or   national,     which   covers  the 
point;   but   they  do    insist    upon  some  generalities    which  they  seem 
to   think  cover  the  case.      We  find   nothing  upon  which  to  base  the 
argijsment  .      On  the  contrarj^    the  Colorado    court    has    sustained  the 
statute  against    such  an   attack.      Jordan  v .   people      (Colo.),     56 
Pac,   218,     220,      See,    al  so,  Ryan  v  .    Peopl  e    (  Colo  .  j.  114  Pac  .,     306: 
Andrews  v  .   People    '^Colo.),     79  Pac .   10  31 ;    Cremar  v.   people    (cole), 
70   Pac.   415.      The  reasoning   of  the   Colorado    court    is    sound,     and 
although  not    conclusive  upon  us,     it    is    so   persuasive  that    nothing 
need  be  added.      It    is   there  said: 

"The  statute,    taking   its   origin   in  England,     has  been  adopted 
in  a   number  of  our  states;    and,     so    far  as   we  are  advised,     wherever 
the  question  has  been   raised,    the  statute  has  been  held   constitu- 
tional,    and   indictments    in  the  form  provided   held   sufficient   to 
charge  murder  of  the  first    degree.      2  £ish.    Or.   Proc.    (2d  Ed.) 
(/    ()   52  3-5  39,  and   cases    cited.     The  act    is   not    in   conflict    with  the 
section  of  the  till    of  rights   providing  that    »in  criminal   pros- 
ecutions the  accused   shall    have  the  right       .      .      .to   demand  the 

5263 


Extradition  19 

nature  and    cause  of  the     accusation.'    Const,   Art.   2,     ()   16.      An 
info iinat ion  must    shov/  the  nature  and   cause  of  the  accusation, 
i.e.,     it   must    set   out   the  crime   charged.    It    need  net    set    cut   the 
mode  or  manner  of   its   perpetration,    or  the   instrument   or  agency- 
employed  to   accomplish  the   result  ."      Jordan  v.    people,     supra, 

He  reach  the  conclusion  that   the  trial    court   properly  denied 
the  writ,     and  the  order  must   be  and    it    is   affirmed,     and  petitione: 
is   ordered  delivered  to   the  defendant   Miller  as   agent    for  the 
state  of   Colorado. 

Evans.     C.J..       Weaver  and   Preston,     JJ.,     concur. 


5263 


SGcticn   3  20 

Venue , 

If  an  alleged  offense    is    found  to   be  one  t'^at    is   triable 
in  this   s^tate.  it    is  then  necessary  to    determine  v/.-iich  oi   ourcourts 

-      trv   it.      AS   a  rule  the   case  must   he  tried   in  the  county   m 
wMchThe  crine  was   connitt  ed  .^^This    county   is    called  the  ve.iue.^ 


State  V.    m'-oracek." 
Su-oreme   Court    of    lov/a,     1908.   14C    Iowa  ?65, 

In  a  trial      for   statutory   desertion  one  problem   involved 
v/a''   whether  the  venue  was    correctly  l^id.      The    indictment    was 
found   in  the  county   in    .vhichthe  vdfe  and   child   resided,  although 
the  defendant    v/as  then  living    elsejiJiere.      In  decidins  that    the 
venue  was    rightly  is  id,    Ladd,     C.   J.,     speaking;   for  the   court    said: 

II.    fes  the  venue   rightly  laid?      "The  local    jurisdiction  of 
the  district    court    is   of  offShses    committed   within  the   ciounty 
within  which  it    is   helj,     end  of   such  other  cases   as   are  or  may 
be  provided  by  law."      Section  51^4,     Code.     This    case   is    not    v/itnin 
any  of  the   excenticns   alluded  to,     unless    it   be  Section  5157  of  the 
Code,    which  provides   that;    ^Utien  a  public  offense  is   committed 
partly   in  one   county  and   part":}  y    in  another,     or  when  the  acts  or 
effects    constituting  or  requisite. to   the  consummation  of  the 
of-f'ense  occur   in       two   or  more'  counties,     jurisdiction   is    in   either 
county   except    as   otherwise  provided  by  iajj^^      The   statute   under 
consideration,     save  the  portion   in  relation  zo    abandonment,     is 
essentially  negative.      The  penalty   is    denounced,     not    on  the  commiss 
ion  of  any  affirmative   act,    but    on  the  om.ission  of  the  plainest 
diity.      Necessarily,    then,    the  venue  de-oends   on  where  the  omission 
to   perform  the  duty  occurred.     The  accused   had   settled   with  his 
family   in  Story   County/,      ileither  he  nor  they  had  done  anything  to 
change  that    residence.*       This   being   so,     it    was    his   duty  as   husband 
and  father  to   provide   for  them  and^furnish  them  with  food,  clothing 
and  shelter  at  their  place  of  residence   in  Story   County.  >-  He  ov/ed 
no   such  dnty   elsewhere,    and,    because  of  the   situation  of  his   wife 
and   children,    must    have  omitted  the  duty   in  Stor-,'  County,  or  not 
at   all.      Somewhat    akin   in  prmciple"' is  I'he'line  of  aases   deciding 
that   the  avenue   in   embezzlement    cases  may  be  laid   in  the  county   in 
w^Tich  it    was  the  duty  of  the  accused  tc   account  .g^  Stat  e  v  .    Ilengen, 
106    Iowa,     711;    St  site  v.  Maxwell.    113  iowa,  369.1  'ThT'-D  res  ence  of 
tne  offender  wiThin  the   courity   v/here  a   crime   is    cominitted   is   not 
always    essential,  ]  but    sojag  poj-tion  of  the  act    or  ommission  tc    act 

must    have  taken  /f f Pr^t    -PrpTt^      l-.Bishop,     l.'ew  Crim.    Pr6C.    b6'.~ . 

1   iiisnop,     iJew  Crim.   Law,    IIC,     111;    People  -  .    Sri f fen.     2  Barb. 
IH.   Y.)    427.      vVhile  defendant,     if  so    inclined,    mTgHT  hc.ve  sent   the 
means   of  support    from  the  place  where   he  was    stayin.^    in  Hamilton 
County  to    have  been   effective  these  must    m.ve  been  furnished    in 

5263 


Venue  "  21 

Story  County.      So  that,     in  any    event,  the  omission  of  the  duty  was 
at    least    in  part    in  thq   cminty   where  the   indictment    was    returned. 
The  offense   is    somewhat    novel,     cut    upon  f'jll    consideration  we   are 
of  the  opinion  that   the  venue   is    in  r.he   r.nuntv   v;here  the  duty  of 
providing   for  the  wife  and   children  should  be  discharged.     S^s 
supporting  this    conclusion,     see   Johnson  v.   Peo-ple     66    111.   App. 
10  3;    Bennefield  v.    State,     80   Ga .    107    (4   S.    E.    869}  . 


State  v,   Gibson 
Supreme  Court    of   Iowa,  1905.  132    Iowa   53,    106  IJ.    J7.   270. 

yrom  a   judgment    of  conviction  of  the   crime  of  false  pre- 
tenses,   the  defendant    appealed. 

peemer,     J .   -  The   indictment    charges    in  substance  that    de- 
fendant^    with  another,    by   false   statements,     pretenses,     and    re- 
presentations,   obtained    from  the  Des   iJToines  Mutual    Hail    Insurance 
Association,     of  Des   Moines,     Iowa,    the   sun  of   $24.80    in  lawful   money 
of  the  United   States.      The  testimiany   shows  that    defendant    v/as   act- 
ing as   agent    for  the   insurance  association   in  soliciting   and    for- 
warding  applications    for   insuranue;      tliat    he   forwarded   pretended 
applications  by  mail    from  Ch'icl^saw  county,     Icwa,    to     the   insur- 
ance association  at    Des  Moines,      Pursuant   to    defendant's    request, 
the   insurance  association  mailed  a   check   for  ^24.50  to    hin, 
drawn  upon  a  bank   in  Des   Moines,  Iowa,     as   his   commission  for  se- 
curing applications    for  insurance.      This    check  was    received  by 
defendant    in  Chickasav/  county,     indorsed  by  him,  and   caahed  by  a 
bank  at    New  Hampton   in  said   county.     Through  the  agency  of  this 
latter  bank  the  check  finally  reached  Des  Moines,    v.fas  there  hon- 
ored by  the  bank  upon   which   it    was   drawn,     and  the  amount   thereof 
charged  against   the  account    of  the   insuranne  association. 

It    is    contended    in  argument   that   the  defendant    did   not    re- 
ceive the  money   in  Des  Moines,     or  polk  county,  but    in  Chickasaw 
county,    and  that   the  district    court    of  Folk   county  had   no    juris- 
diction of.  the  offense.      Under  the   evidence  there  can  be  no    doubt 
that   the  defendant   made  the  false  pretenses   with  which  he   is 
charged    in  Polk  county,     loji^t;    for  the  applications   were  there  re- 
ceived and  acted  upon  by  t?Te  insuranae  association,     placing 
the  same   in  the  mail   to   be   forvi^ardeci   to  the   insurance   company 
was   not^     so    far  as   the  criminal    aspect    of  the   case   is    concerned, 
a   false  pretense   in  the   county   where  the  applications    were  prer)ai'ed 
or  received  by  the  defendant.      State  v.    House,     55    lo-^,     466. 

But    it    is   stoutly   insisted  that    the  money  'jfa.s   tjrccured   in 
Chickasaw  county  and   not    in  Fol'k,     where  Des   Moines    is    situated. 

526  3 


Venue 


22 


a  -Dubl 


hr.ve  a   statute      (Code,     section   51 57 J  (I'M ch  provides  that    when 
ci   uublic   offense   is    ccrrunitted   Tpsrtlv   in\ne   county  and   partly 
in'a-othe^-.    or   v/henthe  acts   or    effects   cQjistitut  ingjjLC-reguisit  e 
to   the  offense  occur   in  two   cn-Tn(Tr5-J5TJnt ie^n urisdict ion  thereoi 
is    in  either   county.      This   wo-old   seem  to    settle  the  question  now 
being   considered.      Com,   v.    Goldstein,     3  Pa.    Co.    Ct  .   R.   121; 
Norris   v.    State.     25  Chio   St.    217    U8  J^ra.   Rep.    291  j;    State  v. 
Lichliter.     95  Mo  .    402    (3  S.    \i.    720);    Com,  v.  Taylor,     lOo  Uass . 
r72;    Reg,   v.  Leach.       7   Cox,     G.C.   100;    peoijle  v.    Diraick,     107  i^.Y. 
o3   (14   N.    E.   17Sj;    Reg,   v.    Jones.     162   Cox,     C.    G.   198.   Aside  from 
statute  there  raay  be  some  doubt    as  to   the  venue  of  the  offense 
under  such  a  state  of   facts   as    is   here  disclosed.      See  Roberts  v. 
PeoT3le,     9   Colo.    458,13  Pac .   620;    State  v.   Palmer.     40'   Kan.    Sup. 
474^  (20    Pac.    270);    Burton  v.    U.    S ..     25   Sup.    Ct  .    243    (49  L.    Ed. 482), 
State  V.    Schaeffer. '  6^  Mo.    271    1    1    S.    V/.   293);    Connor  v.    State. 
29   -^la.    455;     (10    South.    391,     X   Am.    St.   Rep.    1261;    Granam  v. 
people,  181    111.    477    (55   IJ.   E.   179,     47  L-   R.    A.    75L):    U.    S.    v. 
PlvmTDton.     4   Cranch,     C.    C.    309,     (Fed,    Cas .   !Io .   15,058);    Bates  v. 
State,  1^4    V/is..     612    (103  N.    -V.   251).    Com,   v.    Wood.    142  Mass. 
45'3    (8  !T.   E.   432.    )      '.Vithout    deciding  this    question,    which  we  re- 
gard largely  a  moot    one,     it    is    enough  to    say  tliat   our  statute  was 
"borrowed   from  ITev/  York,     and   under  the  decisions    in  that    State 
construing  this   statute  the  district    court    of  Folk  county  had 
jurisdiction.      See  people  v.   Dimiclc^     suiora    » • 


Affirmed. 

State  V  .    Hengen. 

Supreme   Court    of    Iowa,     1893.    106    lov/a   711,     77   KT.  ;/.    453. 

From  a   judgment    of   conviction  of  the   crime  of   embesslenent, 
the  defendant    appealed. 


T  -, 


-add,     J.        The    evidence  tended  to    ehow  that    Pattee,     as 
manager  of  the   installment    house  of   W  .   A.    Edv/ards   of  Des   iioines, 
in  polk  county,     and  the  defendant,     there    entered   into    an  oral 
contract    by  the  terms   of  which  the  latter  agreed^to   travel   and 
sell   goods    for  Edwards    in   certain  counties   of   Iowa  other  than 
Polk,     and  to    account    or  report   to    Edwai'ds   at    Des  Moines  by  mail 
e^rery  Saturday   night,     and  ^nclose  therewith  the  leases  taken  for 
goods    sold   or  cash  received"  therefor.  .    These  leases    ran   from  Ed- 
wards to  the  T3urchaser,     permitted  payment    in   installments,     und   were 
conditioned  that   title   should   net    pass   until   the  price  was    f^olly 
paid.      Some  of  the- goods   were   delivered  by  Pattee  to  the  defendant 
at    Des  Moines;    others    -   and  most    cf  them  -   v/ere  shipped  to   him 
in  Dallas,    Boone,    and   Carroll    counties,     and    from  these  loc£J.ities 
he  made   reports   at    different    times.      The  general    agent    demanded 
an  accounting   in  Carroll,     and   also    in  Dallas    county.      This  the 

526  3 


Venue  2  3 

defendant   failed   to  r.alce,    and   insisted  on  making  settlement  v.dth 
Pattee  at  Des  Koines.    V/hen  he  reached  Des  J/.oines,    he  was  unable 
to  account    for   the  property  recsj^ed.    The  evidence  tenda   to    show 
that  he  appropriated  goods   of  Awards,    delivered   or   sent    to  him, 
valued  at   two  hundred   and   thirteen    dollars.      If   it   be  conceded 
that   the  goods  were  delivered     "by  Edwards   to   the  defendant   as  his 
agent   in  Polk  county,    or  were  sent   from  there  to  hirn   elsewhere, 
and  upon   the  agreement   that'^he  was   to_^count    for   them  to   Edwards, 
in  Polk  county,    and  he  failed   to  do    so  -::'iien  this  was   demanded, 
and  it  appears   that  he  fraudulently  converted   the  sane  tc  his    own 
use  "by   selling  and  appropriating   the^roceeds    in   some  other   county 
had   the  district  court    of  Poll:  coun-^y^  jurisdiction   to   try  him  for 
such  offense?      In   other  words,    v;as    the  venue  properly  laid   in  Polk 
county^      Our   statute  provides   that    "when   a  public    offense  is 
committed  partly   in   one  county  and  partly   in  another,    or  v;hen   the 
acts   or    effects   constituting   or  requisite  to   the  consummation   of 
the  offense  occur  in  two   or  more  counties,    jurisdiction  is    in 
either  county,    except   as   otherwise  provided   cy  law."     Code,    sec- 
tion 5   157.      The  venue  can  always  be  laid  in   the  county  where  the 
conversion   actually  took  place,    but   it   is   often   as   difficult   to 
determlv^'6  wh&e  as   it   is  when  that   happened.      This   is    especially 
true  of  an   agent  xvho   travels   as   salesman  from,  town  to   town  through 
several   counties.      The  authorities   agree  that,    if  the  transaction 
constituting   the  offense   extends    through  different   counties,    that 
in  wiiich  the  conversion   took  p].ace  has   not   the   exclusive   juris- 
diction.   1   Bishop   Criminal  Procedure,    61;    7   Enc.    PI.    5:Prac.    412. 
But,    unless    some   essential    eleiaent   constituting   the  crime  of 
embezzlaaent   occurred   in  Polk  county,    the  venue  could  not  properly 
be  laid  therein.      The   establishm.ent    of  the  contract   creating  the 
fiduciary  relation,    and   the  duty   to   account  for   the  property  re- 
ceived,   is   quite  as  necessary    :^or  donviction   as   proof   of  the 
conversion.      In  Reg;.  *v.    Llurdock,    Dennison  &  P. ,    Crown  Gas.    298, 
m.oney  was   received  by   the  accused   in  Derbj-shire,    though  both 
parties   lived  at  Nottingham.      Upon   inquiry  concerning   the  m.oney  at 
the  latter  place,    Llurdock  admitted  having   spent   it,    and  the  venue 
was   held   to  be  there;    Talfourd,    J.,    remarking:    "Ky  opinion   is,    the 
offense  was   complied  when   the  prisoner  refu3ed   to   account   to  his 
master  at  iiottingham.  "      In  ReR-.    v.    Rogers.    3   Q,.    3.   26,    the   sending 
of  a  letter  by   the  defaulting   employe,    in    effect   denying   the   re- 
ceipt  of   the  money  from  another   county,    where  he  had  collected   it, 
to  his   employers,    and  its  receipt  by  them  in   that   in  which  it  was 
his   duty  to   account,    and  where  both  resided,    gave  jurisdiction   in 
the  latter   county.      In  these  cases    the   judges   assigned   different 
reasons   for   their  conclusion,    and,    in   the  last,    Huddleton,    H, 
dissented.      The  demand   and  refusal  must  be  regarded,    however,    only 
as    evidence  of  conversion,    and  not    essential   to   constitute   the 
crime.    State  v.    Brooks,    85   Iowa,    366;    Hollin  3.sworth     v.    3tate    , 
111.    Ind.   289    (12   K.    E.    Rep.    490);    btate  v.   Ilims,   26  Llinn. 
191    (2   IT.    W.    Rep.    492).    If   this  were  not   so,    the  offender  might 
prevent   the  completion  of   the  offense  by   flight.      And  it  follows 
that,    if   the  conversion   is  made  comtilete  by   the  appro'oriation   of 

5263 


Venue  24 

the  property   in   one  county,    the  mere  demand  and  refusal  v^ould 
not   add  to   it   in  any  way,    and  thereby  aid  in   conferring   jurisdic- 
tion  in   the  place  of    such  demand.      If   there  -vere  no    evidence   of 
such  a  conversion   else'.vhere,    it  migjit  be  inferred   to  have  been 
at    the  place  -.vhere  the  demand   is  made,    in    event    the  duty  to   there 
account    existed.      Rep:,    v.   Murdock,    supra;      Campbell    v.    State. 
35    Ohio    St.    70.    In   the  last   ca,.:e   the  defendant   tras   shown   to  have 
had  the  r.ioney  of  his   principles      in   the  county  -vhere  it  was  his 
duty  to  account,    and  the  fact   that  he  expended   it   in  another^ 
county  V73.S  held  to  be  no   defense.      In  State  v.    Bailey,    50  Ohio, 
656    (36  'I,    E.    Rep.   233)    the  de:^endant  v/as    employed  by  Hood 
Bros.    Co.,    in  Toledo,   Lucas   county,    to  sell   goods   for   cash  or   on 
the  installment  plan   in  Fremont,    Sandusky  county,    but   to   report 
in  person   or   oy  letter   to   the   firm  at   Toledo  at   the    end   of    each 
v/eek.      Part   of   the  goods  Tvere  delivered  to  him  in   Toledo,    and 
others   sent   to  him  at  Fremont,      After  working  some  time,   he  caused 
a  letter   to  be  ^srritten  and  mailed  to   them,    saying  his   sales  were 
small;    he  v/as   discouraged,    but  '.vould  a^ait   their  further   orders. 
He  had   sold  the  goods   on  har^d,    and   spent  part    of  the  proceeds 
there,    and  afterwards   the  remainder  in  Buffalo,    H.   Y. ,    to  which 
place     he  immediately  absconded.      The  court,    in  holding  the  venue 
to  be  in  Lucas   county,    said,    tiirough  Bradbury,    C,J.:    "Tt    is   the  de- 
fendant's   duty  to  account,    together  'vith  his   neglect   cr  refusal    to 
do   so,    that   constitutes    the  fraudulent   breach   of   duty.      A  demand 
at   a  place  when  and  where  he  owes  no   duty     is,    of   itself,    not 
enough.      The  defendant's   obligation  was   to  account   to  his    employers 
at   Toledo,    in  Lucas   county.      This   obligation  pressed  upon  him  v/ith 
equal    force  whether  he  was  within   or  without   the  county.    Kis  re- 
fusal,   neglect,    or   omission  to  discharge  this  duty  may  be  as   clear- 
ly m.anifested  by   silence  and   the  circumstances    of  his  absence,    or 
by  letter,    as  by  spoken  v/ords,    unless   there     is    some  magic   in 
personal  presence.    A'hat   the  presence   of   the  offender  witi.in   the 
countj''  when  a  crime  is  committed   is   net   always   necessary  to  give 
jurisdiction   is   a   settled  principle^   ITorris  v.    State,   25   Ohio   St. 
217.      The  question   is  by  no  means  >tee   from   difficulty,    but  we 
think   the  weight  of  authority,    as   v/ell   as    of  reason,    authorizes  us 
to  hold  that   the  making   of  the  contract   in  Lucas  county,    the   ex- 
press  duty   it   imposed  upon   the  defendant    to  account   weekly   to   his 
employer   there,    either   in  person  or  by  letter,    together  with  the 
fact   that  he  did  report   to  therii  falsely  by  letter,   which  they  re- 
ceived,   constituted   such  integral    and   essential   parts   of   the   tran- 
saction aE    entitle  venue  to  be" laid  Tn  Lucas   county."     The  case 
at  bar   is   like  that  from  which  we  have  quoted,    and  we  are  inclined 
to   follow  it.      The  defendant  lives   in  Polk   county,    where^he  con- 
tract was  made,    and   frori  whence  he  received  "TTTffproperty.      He 
agreed   to   account  to  his    em.pl oyer  at  Des  Moines.      His  failure  or 
neglect   or  refusal    to  do   so   elsewhere  would  not   amount   to   conver- 
sior.jfor  he  owed  no   such   duty  to  his    employer.      That  ho  fully 
realized   this  was   showh  by  his   insistency   on   settling  with  Pattee 
at  Des  Moinec^^  "Whether  there  or    elsewhere,    his    obligation  to 
**^  52  63 


Venue  2B 

account   for   the  property  at    that   place  continued,    and  his    failure 
to   do    so  Tvhen   then  recues-ced   at   that   place  T:as   a  clear    or  each  of 
duty  he  ov/ed  to  his  principal.      The   existence  of   the  contract, 
and  the  breach  of   the  particular   duty   it    imposed,  Trere   essential 
elements    of   the  transaction  constituting    the  embezzlement.      See 
7   Enc,    Fl.    &  Prac.    412;      State  v.    Small.   26  Kan.   209;    State  v. 
Whiteman.    9  T7ash.    402    (37  Pac.'Rep.    659);   McCiain  Criminal  La'.7, 
section   650,      We  do  not   overlook  the  case  of  People  v.   Murphy, 
51    Gal.    376,    announcing  a  contrary  rule,    but   deem   that   adopted 
as  having  better   support   in   authority  and  reason. 
The  judgment  is   Affirmed. 


52  63 


26 

Section  4 


Courts. 


Having  determined  the  county  in  which  the  accused  nay  be 
tried,  the  final  inquiry  in  the  matter  of  jurisdiction  is  to 
determine  which  one  of  xhe  tribunals  sitting  in  that  county 
is  the  proper  one  in  which  to  institute  this  prosecution.  (Por 
a  discussion  of  the  superior  court  see  Page  v.  Millerton  (1901) 
114  Iowa  378,  86  U.  "W.  44C.  The  Municipal  court  is  considered 
in  Model  Laundry  Co.  v.  larnett  (1917)  180  Iowa  55). 


Orton  V-   State 

Supreme  Court   of  lo^j^a,    1853.   4    Greene  140. 

The  opinion   states   the  facts. 

Opinion  by   Greene.    J.      Orton  v/as   indicted  for  an  assault 
upon   Terrel,    and  on  trial   found  guilty.    It   is  ncv  contended  that 
several    errors  were  committed  beloT7     in  the  progress   of   the 
trial. 


2.  It  is  claimed  that  the  court  erred  in  overruling  defen- 
dant's motion  in  arrest  of  judgment.  In  support  of  this  motion, 
it   is  urged,    that   the  court   altered      the  verdict   of   the  jury. 

It   appears   by   the  bill    of   exceptions    that   the  jur^''  returned 
the  follor/ing  verdict:    "^e,    the  jury,    find  the  defendant  guilty 
of   the  second  charge  in  the  indictment."      The  court,    on   receiving 
the  verdict,    s&,id,    "Gentlemen,    let  us  un^'erstand  this   verdict; 
you  find  on  the  simple  assault?"     The  jury  assented.      Thereupon 
the  court   added  to   the  verdict,    in  the  presence  of  the  jury,    the 
folloT;inB  words,    "the  sinple  assault." 

As   the  second  count   in  the  indictment  charges   a    "simple 
assault"   only,    the  verdict   of   the  jury  justifies   zhe  assiiinption 
that    the"  found  the  defendant  guilty  on   the  second  count   in  the 
indictment.      The  judgment   in  the  case  is   in  harmony  with  this 
vie:r  of  the  verdict.      The  words   added  to   the  verdict   in  the  pres- 
ence of  the  jury  were  in  accordance  with  their   explanation  of   the 
verdict.        The  addition  o+'  those  words  was    justifiable.    They  did 
not   chance;    th^y  simply   explained  zhe  intention  and  meaning  of 
the  verdict.  ^!7here  a  jury  return   tc   the  court  an   informal   or  am- 
biguous verdict,    it   is   the  duty  of  the  court   to  have  it   corrected 
in  form,    or  have  the  amhigisiity    explained  by  the  jury,    at   any  tine 
before  they  are  discharged/  Wright  r.    Phillips.   2    G.    Greene,    191. 

3.  But  it  is  objected  that  a  s-imple  assault  is  not  indict- 
able,   as    the  offense  is  cognizable  before  ^  justice  of   the  peace. 

Code,  5    3322  Although   justices   of   the  t>eace  have  jurisdiction 

52.63 


Courts  27 

over   such  offenses,    it  does  not,    therefore,    follo'.7  that    the   dis- 
trict  court    is   divested   of  such  jurisdiction.      In   such  a  case   the 
j urj-sdic tl-fi-'^  -•■"  P   ^  pv=u=--^T- r  en t . 

The  Code  provides   that   the  district   court   shall    exercise 
general    jurisdiction,    both  civil   and  criminal,    "when  not   other- 
wise provided  by  law,"    0  1575.      That   jurisdj^ctijon  can  bejbaken 
away  only  by   express  words.      Y'ri^hfv.   iViar"sh,   2    C-.    (Greene,    94. 

Under    the  constitution,    the  district   court   has    jurisdiction 
in   all   civil   and  criminal  matters   arising   in   their  respective 
districts. 3^_See  art.    5,    (J    4.      The  general   and  concurrent    extent 
of  triat   jurisdiction  has  been   repeatedly  before  this  court.    Cr.ap.. 
man  v.Morg:an.   2    G.    Gieene,    374;    Nelson  v.    Gray,    ib.  ,    397;    Mutton  v. 
Drebilbis ,    ib. ,      595. 

The  indictment  contains    three  counts,    in   each  of  which  an 
indictable  assault  is  charged,    under  which  a   simple  assault 
might  be  included^     A  defendant  may  be   found  guilty  of  any  offense, 
the  comirii&sion   of  which   is   necessarily   included   in   that  with  which 
he  is  charged  in  the  indictment.      Code,    (}      3039.      A  simple  assault 
is  necesoarily  included   in   the  charge  of  an  assault.,   with  intent 
to   commit   a  bodily   injury,    and  therefore  the  defendant  might  have 
been  found  guilty  under    either  coun'C. 

Judgment  affirmed. 


State  V.    Eurdick. 

Supreme  Court   of  Iowa,    1859.    9    Iowa,    402. 

A  der.urrer   to  an   indictment   for  assault  and  battery  having 
been   sustained,    the  state  appeal  ed^>\ 

Wrig:ht,    C.    J.    -   The     grounds    of  demurrer   relied  upon   are, 
that   the  offense  charged   is  not   indictable,    and  that   the  law  under 
which   the   indictment  was   found,    is   repealed. 


The  constitution,    which   took    effect   S  ep  t  em.b  er  5  ,    1B5  7  .    pro- 
vides   that   all    offenses   less   tiaan   felony,    in  wh i c h  tn e  pun i s hm ent 
does   not    exceed  a  fine  of   one  hundred  dollars,    or  imprisonment 
for   thirty   days,    shall   be  tried   summarily  before  a  justice  of   the 
peace,    or.   information  under  oath',   without   indictment.    (Section  11, 
-Art.    1.)      By   the  Code,    section  2597,    the  offense  here  charged, 
was  punished  by   imprisonment   in   the  county  jail,    not    exceeding 
six  m.onths,    or  by  fine  net    exceeding   two  hundred  dollars,    or   both 

52  63 


Courts 


28 


suc>-   fino  and   ir.priscnir.ent ,    at    the  discretion   of  the  court.    The 
punishment   clause   in   this   section  rrc.s   changed  by   section  1, 
chaoter  5C,   La^7B   1858,    go  as   to   read,    "by   i:;iprisonrnpnt   m   the 
county   jail   not  more  than  thirty   days,    or  by  fine  net    exceeding 
one  hundred   dollars."      This   last   act   took    effect   July  4,    16o8. 
Held,    that   there  being  no   saving  clause  in   the  act   of -1358,    as    to 
offenses   committed  prior,    or  prosecution   then  pending,    the  District 
Court  had  no  povrer   to  hear   and  determine  the  cause,    but    that   the 
same  should  be  heard    "surrjaarily  before  a  justice  of  the  peace  on 
information  under   oath."      State  v.    Rollet.      6   lovia.  535;    ?alters 


V.    State,    5    Iov:a  507. 


Judgm^Tit  affirmed. 


State  V.    7ord 

Supreme  Court   of  Iowa,    1913.    161    Iowa  323. 

The  facte    are  stated   in   the  opinion. 

Ladd,    J.    -   The  accusation   against  D.   D.   Ford  and  Johji 
Pumroy  it-   the   "violation   of  Code,    section  2419,    in  conveying  such 
liquor   to   one  not  a  permit  holder";    the  liquor  previously  having 
been   described  as    intoxicating.      The  charge   is  not    specific,    but 
the  sufficiency  of  th_e^  information   is  not  questioned.      The  parti- 
cular  offense  -'as    in  carrying,    as    employees   of  a  drayman,    three 
cases   of  beer   shipped  by  K.    nvew  Company  from  F.oci:  Island,    111., 
via  the  Chicago,   Milwauicee  &  St.    Paul   Railway  Company,    to   three 
persons   at   Ottumwa,    lo^ra;    the  defendants  having  procured   the  said 
casee   from   tlie  rai'^road  company''  at -its   depot  by  virtue  cf   the 
order   of  the  consignees.      The  defendants  were  acquitted  in  the 
police  court   and   the  properti*   ordered  returned.      On   appeal   by   the 
state,    the  district   court   affirmed   the  decision,    holding   in    effect 
that  under   the  so-called  T7ilscn  Act    the  liquors  had  not   so   arrived 
in  I07:a  as   to  render  these  subject      to   its  la^.      See,    as  bearing 
thereon,   Louisville  Ry.    Co.    v.    7.   7/.    Cook  2re^n,-;  Co..      22  3  U.    S. 
70   (32    Sup.    Ct.    139,    56  L.    2d.    355  j  ;    State  v.    ?7i.^n5.11,    150  Iowa, 
650;    State  v.    Intoy.icat  inp-  Liauors ,    106  Ivle.    153   (76  Atl.    265, 
29  L.    H.    A.    (IT.    3.)    745,20    knn.    Cas.    668);    3uli.     etc.,    C.    '^\    Ry.CP. 
V.    State.    28   Okl.    754    (116  Pac.    176,    35  L.    R.    A.    [l^.Z.]    AcoJ] 
State  V.    18  Casks   of  5eer.   24   Okl.    786    (104  Pac.    1093,   25  :..    R..'^. 
(iwS.  )    492;  ;    State  v.    Kirmeyer.    38  Xan.    539    (123  Pac.    1114',. 

The  jurisdiction  of  the   district   court   to   entertain  th9 
appeal   by   the  state  was   cixai^enged  and  the  question   is  again 
raised   in   this  court.      unless   the  cause  was   appealable  fromi  th^ 
police  to    the  district   court,    this    court   could   adquire  no    juris- 
diction,   and  of  course,    if  the  district  court  v/as  ';7ichout 

5263 


Courts  29 

authority   to    entertain   the  appeal,    the  power   of  review  might  not 
be  conferred  by  consent   or  wai-er,    though  the  state  has   so   argued, 
and  the  mere  fact   that    the  defendants   did  not   appeal    from  the 
order   overruling  the  motion   to  dismiss   in  the  district   court  v;ould 
not  -orevent   them  from  raising  the  question  here.    It   is    elementary 
that' jurisdiction  may  be  challenged  at   any   stage  of  the  proceea- 

ings.  .      _.       . 

?he  appeal    is  Dismiss ea. 


State  V.   Kinney. 

Supreme  Court    of   Iowa,    1875.    41    lo'.va  424. 

"Defendant  was   arrested  upon   an  information   charging  hia 
with  the  offense  of   assault  and  battery,    and  brought   before  a 
justice  other   than   the  one  issviin^p;   the  warrant.      Upon   an  affi- 
davit  for  a  change  of  venue  the  cauae  was   sent  bad-:  to   the  first 
justice,   Tiho,    being  unable  to   try  the  cause,    sent   it   to   a   third 
justice;    all    of  these  justices  were  of  the  county  in  which  the 
offense  was    committed.      The  defendant  pleaded  not  guilty,    and 
made  no   objection   to    the  jurisdiction   of   the  last  mentioned   jus- 
tice;   upon  a  trial  before  that   officer  he  was  convicted  and  fined. 
Upon  a,ppeal    to   the  district   court   the  case  was    dismissed   on   the 
ground  that    the  justice  trying   it  had  no   jurisdiction  thereof. 
Prom  thi.^    order   the  state  appeals." 

Beck,    J.    -   The  order   of   the  district   court   dismissing   the 
case  was    erroneous. 

The  jurisdiction   of   justices    of   the  peace   is   co-extensive 
with  the  county.      Code,    (•   4660.      The  justice  trying  the  cause 
acquired  jurisdiction  therein  by  defendant  having  been  brouglit 
into  his  court   and  submitting,    without    objection,    to  be  tried 
there. 

If   there  was      any    error   or   irregularity  in   tahinj;  defendant 
before  the  justice  rendering   the  judgmient,    '.vhich  v;e  do  not   deter- 
mine,   it  was  waived  by   the  failure   to  raise  objection   founded 
thereon   at   the  proper   time.      Objections  upon   such  grounds   cannot 
be  first  made  upon  appeal    in   the  District   Court. 

Reversed, 


52  63 


CHAPTER   II  ^0 

STATUTE  OF  LIMITATIONS 

With  regard   to   limitations   as    to   time,    iz    is    one   of  the 
peculiarities   of   English  law  that   no   general   law  of   prescription 
in  criminal   cases    exists   among  us.      The  maxim  of   our   law  has 
always  been    'Nullum  tempus   occjrit   regi',    and  as   a  criminal    trial 
is   regarded  as  an  action  by  tho  King,    it   fellows   that   it  may  be  ^t^m^ 
brought   at   any  time.      This  principle  has  been  carried  to  great  ^    J^ 

lengths   in  many  well-known  cases.      In^the  middle  of  the  last   c  en-    ^-.^ 
tury  Aram  was   convicted  and    executed  for   the  m.urder   of  Clarke,  ^      . 

fourteen  years   after  his  crime.      Home  was    executed   for   the  murder        •• 
of  his  bastard  child    (by  his  07/n_sister)    thirty-five  years   after 
his   crime.      In  1802    Governor  V/alT  was    executed   for   a  murder 
committed   in  1782.      Not   long  ago  a  man  named  Sheward  was    executed 
at  Norv/TcT:- f  or   the  murder   of  his  wife  more  than  twenty  years 
before;    and   I  raay  add  as   a  curiousity  that,    at    the  Derby  ';7inter 
AssiEes    in   1863,    I  held   a  brief   tijjr   the  Crown   in  a  case  in  which 
a  man  was   charged  with  having  stolen  a  leaf  from  a  parish  regis- 
ter  in  the  year   1803.      In   this   instance  the  grand   jury  threw   out 
the  bill."      (2    StepTien's   History  of  the  Criminal  Law  of   England,!) 

Eut   although  this  was   true  at   common   law,    statutory  limita- 
tions  of   the  time  in  which  prosecutions  may  be  instituted,    are 
quite  general.      It   should  be  borne  in  mind   that    fjucJ:!  sto-tutes   are 
agts   of  ^^r  ace  and  hence  are  not  governed  by  the  same  rules    of  con- 
struction  as  are  applied  to   ordinary  statutes  which  change  the 
comjiion  law  rules   of  crimes  and  punishments. 

Brightman  v.    Hetzel. 

Supreme  Court    of   Iowa,    1918.      183   Iowa  385. 

The  facts   are  omitted. 

Gaynor ,    J.    -      

In  City   of  Waterloo   v.    Union  Llill   Co..    72    lov/a  437,    the  doc- 
trine was   recognized   that    the  statute  of   limitations   will   not   run 
to   defeat   the  exercise  of   governmental   powers.    It   rests  upon   the 
doctrine  that   individuals  raay  be  held   to   a  time  limit   in   the   en- 
forcement  of   their  rights   against   adverse  claimants.      This    is   be- 
cause they  have  sufficient    interest    to  make  them  vigilant.      But 
in  public   rights,    each  individual  .feels  but   slight   interest,    and 
would   rather    tolerate   even  ^  manifest    encroachment    than  to    seek  a 
dispute  to   set   it  right.      The  people  do  not   act    m  a  body.    The 
agents   of   the  government,    experience  shows,    do  not  m.anifest    the 
same  degree  of  diligence  in  detecting  and  protecting  public   rights 
that   individuals    evince  in   the  r)rotection   of   their  cvn  rights.    Some 

52  63 


♦   • 


statute  of  Limitations  31 

courts   hold   that    the   statute   of   limitations  cannot  "oe  invoked   -;o 
deprive  the  people  of  their  right   in  putlic    easements,  /a  puolic 
easement  belongs   to   the  public,    and  all    individuals   are  charged 
with  knowledge  of  this  fact.      Arij   encroacjrjment  upon   the  public 
right   is  a  wrong  at   the  very   p.eginnin^.    and  continues   a  vrrong, 
and..!!^^   form  no  basis   for   an.  estoppel   against   the  :vuDlic~      S^e 
Tar^ld"son  v.'   Tovm   of  Lime  Springs.    ^^    imJu  18/',    Lil-.ca^:o7   R.    I. 
&  P.    R.    Jo.    V.    City   of   Council   Bluffs.    105    lov/a  425;   Dickinson 
County  V.    Fouse,      112    Icvra  21;    Biglow  v.    Ritter,    131    Iowa  213; 
Quinn  v.    Laage7~155   leva  426.      In  this  last   case,    it   is   said: 

"Though     the  authorities    are  in  conflict   on   the  question 
(to  wit,    the  statute  of  limitations),    this   court   is    committed   to 
the  doctrine  that,    in    f^stabi  i  sliing  and  maintaining   a  hig^hway.    a__ 
municipality   e::eT"ci  aes   jjovernmental   functions,    and  for   this  reason 
the  jr^odLe   of   lirr.itat ions   does   no'c  run  against   it  "^ith  respect 
to    encroa^nmen"D    therein."  ~~~  "" 


State  r.   Disbrow. 

Supreme   Court    of    Icra,    1906.      130   Iowa   19,    106  11. T[.    263. 

Fror.;  a  aonviction   of   the  crime  of   larceny     by    embezzlement, 
the  defendant   appealed. 


Weav  er   J .    - 


III.    The  indictment  appears   to  have  been  framed      ^vith  the 
purpose  of  charging  an   offense  under   Code,    section  4842,   which 
enumerates   several    classes   of   employes,    agents,    and  bailees 
whose  fraudulent   conversion   of  money   or   prop  ei'ty   intrusted  to 
their  keeping   is  made  punishable  as    em.bazzler.ent.      This    section 
does  not    expressly  mention   guardians    as  being   subject    to    the 
penalties   there  provided,    and  ^/h ether   they  are  fairly  included 
witliin  the  general   terms   of   the  statute  is  a  question   on  which 
the  authorities   are  not    in  unison.   Llyers  v.    State,    4   Ohio   Cir.    Ci 
R.    570;    State  v.    Henry.    69   Tenn.    720;    State  v.    Lleyer.   25  TTkly. 
Law.    .fcul.    (Ohio)   251;    Com,    v.    Buttcricl:.    100  Llass.    1    (97  Am. Dec. 
65);    State  v.    Gillis.    75  Kiss.  "331    (2T"south.   25);    State  v. 
7/hit  chouse.      95   Lie.    179,    (49   Art.    869).      The  case  as   presented 
does   not  require  us   to  construe  the  statute   in   this   respect,    and 
is   one   of   too  much  ir.portance   to  be  de-^initely  decided  without 
the  assistance  of  argume^it  by  counsel  upon  Loth   sides 


w-kJ     » 


The  same  section   of   the  statute  also  provides  that,   where 

the  fraudulent  conversion   or    embezzlement   of  r.xoney  is   accomplished 

by  a  series    of  wrongful   acts   done  in  course  o^  the  same 

5253 


statute  of  Lirit^'.tions  32 

er.ployment,  they  are  to  be  considered  as  if  all  ivere  dons  at  the 
same  time.  ■t.Thether  this  clause  is  applicable  to  a  charge  of  the 
nature  of   the  one  here   involved,    and,    if  so,    its    effect  upon  the 


__   probably 

we  stop  to   consider   it.      The  trial    court   adopted  the  theory   that 
each  act   of   the  accused   in  fraudulently  converting   the  trust   fund 
or  any  part   of  it  to  his   own  use  constituted  an   independent 
offense,    and  that   as   to   each  the  statute  of  limitations  began  to 
run  at   the  date  of  the  act.      This   is   also   the  theory  of   the 
appellant,    and  must   therefore  be  regarded  as  the  law  of  the  case 
for  the  purposes   of  this   appeal. 


It  ^.vill   be  recalled  from  the  preliminary  statement   of   facts 
that  prior   to   the  presentation  of  the  indictment  herein  another 
indictment    had  been  returned  against   appellant   on  the  sane  charge 
and  set   aside  as  defective  and  the  matter  resubmitted  to   the  grand 
jury,      Tne  date  of  said  prior   indictment  was   September  T  4      "!  ^(^4 . 
Now,    as    the   evidence   on   the  trial   showed  quite  conclusively   that 
appellant   converted   the  trust   ftind  to  his   own  use  in  several   items 
or  amounts   and  at  various      times    extending  over   a  period   of  about 
six  years   fror.:  189.6  to   19X2.    and  as    the  statutory  limit   for 
criminal   actions   of   this  nature  is  but   three  years,    it  v/as   a 
m.atter     of   importance  to    the  appellant  that   the  jury  should  be 
correctly   instructed  as   to   the  period  within  which  he  could  be  held 
criminally  liable  for  his   acts.      The  instructions   given  directed 
the  jury  that   such  liability  included  all   fraudulent  conversions 
by   the  accused  v/ithin  three  years  prior   to   the  return   of   the   first 
indictment   September  14 ,_  ]„?Q4.      This   ruling  is   assigned  as    error, 
it  being  the  contention   of   the   appellant  that  he  can  only  be  held 
liable  for  such  embezzl  em.ents,    if   any,    as  were  comimitted  by  him 
within  three  years  prior  to  th£.jiate  of   the  indictm.ent   on  which  he 
was   tried,    January  19.    1905.      \Te  are  of  the  opinion   that    this    con- 
tention must  be  sustained.      Limitation   of   the  time  beyond    vhich  an 
action  will  not  be  maintained  is  purely  a  matter  of   statutory 
enactm.ent,    and  precedents  cited  from,  other   jurisdictions  are  of 
little  assistance,    unless   it   also  appears   that    the   statutes   there 
considered  are  of  like  form  and    effect  with  our    own.      Our   statute 
(Code,    section  5165)   provides    that   an   indictm.ent   in   this   clas€   of 
cases  must   "be  found  within  three  years   after   the  com;:iission   of 
the  offense  and  not  afterwards."      In   somie  of  our   sister   States   the 
corresponding  provision  is   th,at    "profeecution  must  "be  begun"  within 
the  stated  limit.      The  beginning   of  a  prosecution  and  a   finding  of 
an  indictm.ent   are  not    equivalent   expressions.      A  prosecution  is 
begun  when  an  inform.ation   is  f  il  ed  b  ef  or  e  a  magistrate  and  a 
warrant    issued  for    the  defendant's   imm.ediate  arrest.      An   indictm.ent 
is  found  '-flier,   it   is  presented  by   the  grand   jury   in   due  form  in 
open   court   and  filed  with   the  clerk.      This    distinction  has  been 
widely,    though  perhaps  not  universally,    reccgni-ed.    Com,    v. 
Woodward,    l   Chest.    Co.    Ret).    (Pa.)      102;    Eou^hn  v.      State.    44 

52  63 


statute   of  Liinitaticns  33 

Neb.    889    (62   N.    V7.    1C94);    Com,    v.    ^unn    (?a.  )    1  Leg.    Op.    114; 
United   States   v.    Slacuin,    ?ed.    Gas.    ilo.    16,311;    £x  parte  Lacey 
fOkl.)    (T?  Pac.    1095):    Coci.    v.    Hass.      57   Pa.    443. 

The  language  of   the  statute  it  too   clear   for   construction, 
and,    vrithout  reference  to   the  time  'vhen   the  proceedings  were 
begun,    the  indictment  must  be   found  within  three  years   from  the 
comraission   of  the  offense,    and  not  afterv/ard. 

It   is   said,    hot/ever,    on   the  part   of  the  State,    that    even 
if   this  he  true  it   is   settled  la\T  that    "the  tine  during  Trhich 
an  indictment  t;hich  has  been  quashed   or   set   aside  was  pending 
is   not,    in  case  a  new  indictment   is   fojand,    computed  as   a  part    of 
the  oeriod   of  limitation,    provided  the  same  offense  and  the  same 
offender   are  charged   in  both  indictments."     We  find   this  general 
proposition   stated  in   some   of   the  text-books   and  cyclopedias; 
but  reference  to  the  cases   relied  upon,    sc   far   as  we  have  been 
able  to    examine  them,    reveals   in   each  instance   that   the   decision 
turns  upon  a  local   statute   expressly  or   impliedly  providing  that 
upon   the  setting  aside  of  an  indictment   or  the   entry  of  a  nol . 
pros,    the  right   of  the  State  to   present   a  new  indictment  within 
a  limited  time  shall   not  be   orfc.ludic  ed.      Swall  ey  v.   People,    116 
111.   247    (4  xT.    E.   Rep.    379);    State  v.    Dunham,    9  Ala.    76;    Stafford 
V.    State.    59   Aric.    415    (27   S.    V/.    Rep.    495;;    State  v.    Child,    44 
Kan.    420   (24  Pac .    Rep.    952);    State  v.    Hailey,    51  N.    C.    42. 

It   seems   to  us   a  reasonable  and  just  proposition   that,    in 
the  absence  of  any  statu-fre  saving  such  rigt.t   to  the  State,   the 
running  of  the  statute  of  limitations  ought  not  to  be  interrupted 
or   suspended  by  the  return  and  pendency  of  an  indictment  upon 
which  no   valid  conviction   or   judgment   can  be  founded.    Such  an 
indictment   is  no   indic'^m^ent.      It   is   a  nullity,    and  while   it  may 
serve  as   authority   for   the  trial    court   to   continue  the  defendant 
in  custody  and  cause  a  resubm.ission  of  the   caae  to  the  grand  jury, 
such  order   is   in    effect   the  m.ere  direction   that   the  original   in- 
quiry  shall   be  resumied  as   if    the   defective   indictment  had  never 
been  voted  or  r eturneS*  into  court.      It   is   no  more  than  a  restor- 
ation  of  the  case  to    the   status    it  occupi  ed  *at   the  time  it  was 
originally  submitted.    The  grand  jur^-  takes      it   up  anew,    and  may 
present   or   ignore  the  bill,    without   any  reference  whatever  to 
the  fact   that   one  indictment  has  been  presented  and   set   aside. 
Cases   are  not  wanting  wliich  tend  zo   sustain   this  viev/.      United 
States   V.    Ballard.      Fed.    Gas.    I'o.   14,507;    State  v.    Curtis,    30  La. 
^nn.    1166;    Comi.    v.   Keger.    62   Ky.   240;    Ucwoort  News   «Se  M.    V.    R.R. 
Co .    V .    C ona:ionw eal th .    14  Ky.    Law.    Rep.    197.      But,    -.vithout   reference 
to    the  precedents   fr^;  other   States,    our    statute  admits   of  no 

other  conclusion   than   the^one  we  have  indicated 

Reversed. 


52  63 


statute  of  Liiritaticns  34 

State  V.    Scper. 
Suprer:,e  Cou:-.-t   cf  l0T7a,    1902.    118   Io'.7a  1.    91   'J.I.    774. 

McGl  5,1:1    J.     -     

II.    Ano'clisr  ground  cf  denurrer  'ivas   that   the  indie tr.ent   en 
its   face  sho?/ed  that   it  was  nc-;   found  -nthin   the   statutory  period 
of  limitation,   wMch,    as   to  the  cri:;ie  of  conspiracy,    is   t:_:re3 
years.      Code,    secti'on  5165.      But   Code  section  5167,    proyices    that 
"nT^period  during  wiiioh  the  party  cmrged  was  not   publicly  resi- 
dent^Tyithin  the  state  is  a  part   of  the  liiuitation,  "  and   it   is 
alleged   in  the  indictment  that    "since  the  conr.'ission   oi    the  afore- 
said cri2.ie the  defendants   have  bee;i  nonresidents   and  lived 

beyond  the  liinits    of  the  state  of   lo'wa  more  thnji  one  year."     As 
the  indictnent  was   found  less    than   four  years   after  the  date  cf  ^t-:^ 
conspiracy  as   charged  in  the  indictinent,    this   allegation   is   suffi- 
cient  to  take  the  case  out.   of   the  statute,    and  bring  it  j-it^iin  the 
exception  of  Code,    sectioru~51S7 .    unless   it   in   to  be  said     uiiat 
vhile  one  is   a  nonresident   of   -ti^e   state  and  living  beyond  its 
li:7iits  he  may  nevertV. elesb  be  publicly  resident  ^/ithin  the  state. 
17e   think   it    evident   that  by  an;"  reasonable  interpretation  the 
language  used   in  the  indictment  inust  be  held  to   plainly  negative 
public  residence  7?ithin  the  state,    and  therefor     that   this    objec- 
tion '.Tas  not  rvell   taken    


Aff  imnd. 


State  ".    Hussey. 
SupreKiO   Court   of   leva.    1858.      7   Iov;a  40? . 
Wright,    Co.- 


•    •    »   • 


The  objection   that    the  prosecution  ^ae   barred  by  the  statute 
of  lirit"tiont,    could  not  be  n:a.de  'oy  .dep.urrer.      If,    after   the 
offence  'vas   com::itted,    there  'ir',s   any  period   during  '.vhich  the  party 
charged,   r7B.3  not  usually  i-^na.  probably  a  resident  "ivithin   the  State, 
such     period  is  not  to  be  taken  as   a  part   cf  the  limitation.    Cods, 
section  .^314.      Such  ncn-Ji^eside.ic  e  need  not ,    hot-ever .    be  stated 
in   the  indictr.ai^t .      If   t af:~~d ef  er.'d?cnt   r  ol i  es   upon   the  bar    of  the 
statute,    he  should  plead    the  Bvxiie,    to  r/hich   the  State  laiglit  reply 
the  ncn-r esidence,    and   thus  raise  the  isnue. 

For   this  reason,    then.witi-out   stating  others,    vre  think  the 
demurrer  'Tas   properly   overrul ed 

(On   other  grounds   the  judgment  r/as) 

Reversed. 

52  63 


/ 


statute  of  Limitations 
State  V.    7;halen. 
Supreme  Court   of   lorra,    1S95.      98   Icv/a  562,    6B  N.    ^.    554. 


Ro'binson, 


V.    The  indictraent  vjb.z   found  on   the  seventeenth  day  of   January, 
1895.      The  defendant   stated,    as   a  v/itness,    that  he  had   se;r^ai   in- 
tercourse T.'ith  the  prosecutrix  in  the  year   l^£i ;    and  in   some   of 
her  ansv;ers   she  stated  that    the  time  of   the  seduction  Tvae   Sep- 
tember 29,   189^    although  she  afterv'ards  corrected   the   statement, 
and  said   the  year  rra.s   1893.      During  the  time  the  state  "^as   intro- 
ducing  ito    evidence,    the  defendant    offered  an   instrument,    of  ?/hich 
the  following   is   a  copy:      "Comes  no-.7  the  above  named  defendant,    and 
specially  pleads   that    this  prosecution   is  barred  by  the  statute 
of  limitations,    and  asks   the  court    tc  charge  the  jury   that   if   they 
have  reasonable  doubt  v;hether  the  'Offense  charged   in  the  indict- 
ment V73.B  coiiTmitted  -/within   eighteen  months  prior   to   the     seventeenth 
day   cf  January,    t'895~,    if  committed  at   all,    they  must   acquit  .defen- 
dant. "      The  court  r^efused  tc  allo^  the  paper  to  be  considered  as 
a  plea,    bvit,    in   the  charge  which  it   gave,    instructed   the  jury  that, 
if   the  offense  charged  Tras   comiiiitted   eighteen     months   or  more  be- 
fore the  finding   of   the  indictment,    the  defendant   could  not  be 
convicted.      The  appellant  contends   that   the   court    erred  in  not 
permitting  him  to  plead  the  bar   of  tr.e  statute,    and  relies  upon 
the  cases    of  State  v.    Huseey,    7   Iov;a,    409,    and  State  v.    Groor.e, 
10   lovra,    512.      The   first    cf   these  cases   held  that    "    defendant 
^ho  relies  upon  the  bar   cf  the  statute  should  plead   it;    and  the 
other,    that   it   could  not  be  raised    oy  demurrer,    by  instruction, 
or  motion   for  a  nej'  trial,    but   should  be  specially  -pleaded. 
Neither   of*  those  cases  "ras   decided  under   existing  statu^Ts,    but 
under   the  Code  of  1351.    Section  2957,    cf  that   Code,    provided  that: 
"There  are  three  icinds    o-'  pleas    to  an   indictment,    *7hich  r^ay  be 
pleaded  by  the  defendant:    ?irst,    guilty;    second,    not   guilty; 
third,    a  forr.er   judgm.ent   cf  conviction   or   acquittal    of  the   offense 

charged   in  the   indictm.ent "In   section  -1-714,    of   the 

Revision,  of  186G,    and  in   section  4359,    of   the  Code  of  1873,    ti.e 
language  is,    "There  are  but   thJ?ee  pleas   to   an  indictment"    (nar.ing 
the  samie  as   those  given   in  the  Code  cf  1851).    The  sentence,    "There 
are  three  kinds    of  pleas,"   is  more  comprehensive  than,    "There  are 
but   three  pleas,"      and  the  change  from  the  former   to   the  latter, 
indicates   a  i_egislative  intent   to    exclude  all   pleas  not    specified. 
This   conclusion   is   strengthened   som.eTrhat  by  section  4715,    of  the 
Revision,    no";  section  4360,    of    ^j^  Cede,    r.-hich  prescribes   a  form 
for    each  cf    the  three  plsas   alloTsred.    It    is   further   strengthened 
by  the   enactment   irfTPT?  Revision   of   section  4655,    continued  in 
the  Code  of  1873,    as    section  43G1,    r-hich  is   as   follo-.rs:    "The  pre- 
cise tim.e  at  X7hich  the   offense  r/as   commdtted,    need  not  be  stated 
in  the  indictr.ent,    but   it   is 'sufficient  if   it   allege  that   the 
offense  was   comr.iitted  at   any  time  prior  to   the  finding  thereof, 

52  65 


statute   of  Limitations  ?6 

except  vjhen.   the   time   is   a  material    ingredient   in   the   offense." 
It    is  not   necessary,    under  this  provision,    to   prove  v.'hen  an 
offense  was   coiTH^iitted,    if   time  is  not   a  ma  ferial    ingredient   of   it. 
State  V.   ITocre.    78  lor.-a,    495    (43  N._W.    Hep.   273),    and  ca&es   there- 
in  cited;    State  v.    Deitrick.    51    l07;a,    471,    (l  IT.    '.?.    Hep.    732). 
If   the    e"ic".ence  shQ-vs    tha-    the   offense  was   oomr.itted  ••■ithin  such 
a   time  lorior  to   the  finding,    the  indictment   tiiat   the  action   is 
not  barred,    it    is    sufifc-xent,    and  it   is   "che-'vell    settled  ':.,nd  au- 
thorized practice  to   instruct   the  jury  'vithin  r/hat   time  ti.e  crime 
charged  must  be  proven  to  have  been  commiitted,    in   order   to  v/arrant 
a  conviction.      The  plea^  tendered  in  this   case,    tc   the    effect   that 
the  prosecution  'vas   ^Sarred  by   the  statute   of   limitations,   v/as 
neither  necessary  to  a  presentation   of  that  defense,   nor  author- 
ized.     The  court   rifrhtly  charged  the  jtiry   in  regard   tc    the  time 
within  which  the  alleged   offense  must   have  been  Gorm.:itted  to 
authorise  a  verdict    of  guilty,    and  that  "as   sufficient. 


Affirned. 


St  at  e  ^  .   Kut  chi  ns  o  n . 

Supreme   Ccurt    of    Iov;a,  183  3,     5C    Iowa    4'?S,     15   IT. '.7.    298. 

Frcr.  a   conviction  of    embe.^zl  eraent,    the  defendant    appealed. 

Rothrock,     J.    -  The  defendant    wr.s   Treasurer  of   Webster  county 
for  ten  years,     corn-nenc ing   in  Jf.nuary,    18.S8,    and    endir^    in  Ja:ra£.rjr, 
1S73.      In  April,    137E,  the   indictment    in  this    case  -.vas    returned 
against    him,  in  which  he   was    charged   v/ith  embezzling   about    $4&,  OQC 
of  the  public  money   v/hich  came   intc    his   ris.nds   as    3uch  treas'orer. 

The  State   introduced   in   evidence  the  settlement    sheet    v/hich 
was  made  at   the   oommencement   of  the  defendent's   last   term  of 
office,     in  January,    1876,  v/ith  his    cert  if  icat  e  thereon  that    it    v/as 
a  true  statement    of  cash  then  in  hi?   hands   as  trea!:rurer.     The 
account    or  settlement    sheet    embraced  the  transactions   cf  the 
office  for  the  six  months   next   preceding  the  settlement,    end  upon 
its    face   it    apr>eai'ed  to   be  correct,  and  the  defendant    '.vas  thereby 
shov/n  not   to   be  in  arrears.      T'^ie   State  then  follov/ed    up  this_  show- 
ing b-.-  an   exhitit   of  the  subse.:iuent    semi-annual    settlement    sheets, 
and  then  from  the  books   of  the  office   for  the  last    six  months   of 
the  last      term,   ending   in  January,    1373.      Uricn  this  basis    it 
appeared  that    ct    some  time   during  the   last   term  of  office  the     de- 
fendant  became  short    in  hi.s    ca^h  some  $46,  SOC  . 

We  do    not    u.nd  erst  and  that   the  defendant  contended   upon  the 

tri?.l   thrt    he  v/as    not    short    in  his    cash,     and  lar?elv   in  arrears, 

v;hen  he  v/ent    out    o-!"  office   in  Januarv,    1G78.  Put    he  sovvrht    tc 

5263 


statute  of  Limit  at  icns 


37 


show  that   this   shortage  occured   during  his    prior  terrns      more  than 
three  years  tefore  the  indictment    was    fc una,  ana  tnat      therefore 
the  ^rollcution  was   barred  ty  the  statute  of  lirnitat.ons        .0  rnake^ 
this"  proof,    the  defendant   offered   eviaence  to   t-.e  ef.ec.   tnc-.o    .t 
the  .Sttlement   made   in  January.    1875,    and  at /.nee  P^'evioasiy  .nd 
subsequently  made,    but    a  small   amount    of   casn  ^f^^,  P^^^^-f  S^IX  ^^tu- 
settlLent.    and  that   the  cash  balance     whicr.  should  nave   ^een  actu- 
ally  in  his   hands    in  money,     were  largely  made  up  of  c^nK   cert  1.1 
cates   of  deposit    and   other  vcucxiers.    xie  oiierea  to    sncw  .a^t    cer. 
f?cates   of  deposit    and  other   evidences   of  debt    had   oeen  made  use  o. 
bv  him  in  his   settlement,    more  than  three  years   pnor  to   tne  bind- 
ing of  the   indictment.      He   further  offered   to   prove  tnatn|hadno  . 
funds    in  the  banks   which  issued  the  cert  if  icat_e^  _  xn  other   ./o.d.. 
he  offered  to    show  and  r^ove  that    he  maae  nis   settlement    witn/ne 
board  of   surjervisors  fcy  the  use  of  worthless   and   spurious    cer.1^1- 
cates/cf  deposit,     instead  of   cash,     and  that    whatever  money  was   con- 
verted to   his   ovm  use  was   so    converted  more  than  three  years    oefore 
the   indictment    v/as   presented.      This    evidence  was   objected  to    oy  the 
State,  and  the  objection  was   susteined.      This    ra].ing,     as   v/e   infer 
from  the  objections   made  to   the   evidence,     was  based   upcn  the   idea 
that    the  defendant    was   criminally  bound  by  the  settlem.ent    sheets, 
and  by   his    cert  if  icr.t  es,    that    he  had  the  cash  actually  on  hand  at 
the  time  the  se^.-eral    settlements   were  m.ade. 

In  Boone   County  v.    Jones,    54    lov/a,     659,     it    was   held  that    a 
county  treasurer,    and  the  sureties   on  his  bend,     were  bound  by  a 
settlement   and  accounting  made  according  to   lav/,    and   where,    at 
such  settlement,     for  aughtr  that    appeared,    the  cpsh  v/hich  should 
have  been  on  hand   was   proauced  by' the  treasurer,     such  settlement 
ccijld   not   be   i;.ipcached  by  ehowing  that   the  defalcation   complained 
of  previously   exist  e_d,.      In  other  words,     it    was   held  that,    where 
a  treasurer  produces   the  funds   v/hich  should  be   in  his   hands,     at 
a   settlement,    the  settlem.ent    is    conclusive,  and  the  treaourer  and 
his    sureties    cannot   be  permitted  to   prove  that   the  treasurer  de- 
ceived the  board  of  supervisors    in^  such  settlement,    by  producing 
money   not   belonging  to   the  office^^or  to   the  treasurer.     That    was 
a  civil   action  to    recover   upon  the  bond  of  the  treasurer   for  an 
alleged  defalcation.    In   V/ebstor   County  v.    Hutchjnsoii.     9  II,    tf. 
Rep.,     901,     and  12   N.    \7.    Rep.,     5  34,     which  y/as   a   civil    action  to 
recover  on  the  defendant's   bond   for  the  same  alleged  defalcation 
for  which  the  defendant    was    indicted   in  this   case,  it    appeared  that 
the  settlement    was  made  with  the  treasurer  without    producing  the 
money  y/hich  should  have  been  on  hand,    but   by  producing   certificates 
cf  deposits    from*  banks,     and  other   evidences   of   indebtedness.      It 
v/as   held  that   this    const  it ut  ed_no_se^tl  ement,    because  the  law  re- 
quired the  cash  to   be  produced.      It    was    further  held  that,     as  the 
board   of  superr'-isors   v/ere   not    deceived  'c^'■  the  -oroduction  of  the 
money,     it    was   allowable   for  the  sureties'  avon  the  defendant's  bond 
to    show  that   the  defalcation   existed    in   fact    prior  to   the  settle- 
ment   in  question.      It    was   also   held,     in  that    case,  that    the  defen- 
dant   was   concluded,    by  the  settlement,     unon  the  very  obvious   ground 
that    he  could   not   be  allov/ed  to  take  advsntage  of  his   cv.-n  v/rcng 
and    fraud,    to   the   injui-y  of  the  public,  even  though  the  beared   of 
supervisors   knew  that   the  settlement    was   not   made   in  compliance 
with  the  law. 

5253 


statute  cf  Limtations  28 

We  are  now  required  tc    detorrdne   -.vhether  or  not   the  atove 
rules,     which  are  applicable  tc    civil    liability  upon  a  treasurer's 
"bond,     should  be  held  tc   obtain  in  a   criminal   prosecution  for  en- 
bezzlement.      We  are   clearly  of  the  opinion  that    they   should   not. 
If  the   claim  of  the  defendant   be  true,     he  v/as   guilty  of   enbes^le- 
ment    a?    early  as   1372.      He  offered  to   prove  that,     frorr.  that   time 
forward,    he  made  "IuF~settl  ements,    not    v.ith  money,  rbvtt    largely   with 
certificates   of  deposit,    and   v/ith  other  promises  to    pay.  This^  was 
v/holly  unauthorized  by  law./    Even  if  the  defendant    had  actually^ 
deposited  money   with  the' bsinks,     and  the  certificates    represented 
the  deposits,     such  a  disposition  of  the   funds    in  his   hands    was   un- 
authorized,   Lowry  v.   Polk   County,     51    Iowa,     5C .      Lut    ;vhen  the  defen- 
dant   offered  to   'lorove  that    he  had   no    deposits   in  the  ban.ks,     ne,  ^ 
in  effect,     offered  to   show  that    he  had   converted  the  money   whic/i 
had  been   in  his   hands  to    his   ovm  use.      At   least,    this    wo'old  have 
been  the  logical    inference,  in  the  absence  of  proof  that    he  had  lost 
it,  or  that    it    had  been  stolen,     or  the  like.      The   fact   that    at    eacn 
settlement   he   failed  to   produce  the  money,     v/as   a   sufficient    failure 
to    account    for  the   funds    in  his   hands,  to    constitute  the  crime  of 
embezzlement,     in  the  absence  of   exculjiatx! r;.-  proof. 

We  think  the  defendant    should   have  been  allov/ed  to    shov;,     if  he 
could,    that    no    defalcation  t_&ojk_place   within  three  years   naict   be- 
fore the  finding  of  the   indictment.      We  know  of   no    ruD.  e  that    estops 
a  defendant    in  a   criminal   prosecution  from  proving  the  actual    fact 
in  dispute,     notwithstanding  any  admission  or  confession  he  may  have 
mrde  to   the  contrar2r.      GonclusJjL£_presumpt  ions   and    esto-ppels   have 
no   place   in  the   criminal   lav;  in   establishing  the  body  of  the  crim.e 
charged.     The  statement    and   certificate   shov/ing  that   the   cash  v/as 
actually  on  hand   and  produced  at   the  settlem.ent    in  1876,    amounted 
to    no   more  than  an   implied   confe^gion  that   the  defalcation  took 
place  after  that    time,"    and  to   deny  to   the  defendant    the  right   to 
dispute  the  confession  thus  made   io,     in  our  opinion,     fundamentally 
wro  ns . 


;r    (if  a   demand 

was   necessary)    for  the  pa2/ment   of  the  alleged   shortage,     v;as   a   suffi- 
cient   demand,     in  view  of  the  authority  given  to   him  by  the  board  of 
supervisors. 

For  the   error  first    above  discussed  the  judgment    of  the 
District    Court    will   be  ^ 

Reversed. 


5263 


CHAFTiS   III  39 

FOP.TvJER   JEOPARDY 

It    is   stated  by  Blackstone    (4   Corj-.    355)    to   te  a    "universal 
rxtxira  of  the  coramon  lav/  of  England,  that    no   men   is  to  be  broupht 
Into    jeopardy  of  his   life  more  tl^is.n  once   for  the  same  offence." 
This    ii^    not    entirely   covered  by  the  provision  of  the   Constitution 
of    Iowa    (Article  1,     section  12")   that"  "no   person  shall,     after  ac- 
quittal, be  tried      again   for  the  sene  offense";    but   by  statute 
(Code  of    '97,     section   5539)    it    is    provided  that    "a  conviction  or 
acquittal   by  a   judgment    upon  a  verdict    ehall   bar  another  prosecu- 
tion for  the  same  offense,     notv;ithstanaing  a  defect    in  form  or 
substance   in  the   indictment   on  which  the  conviction  cr  acquittal 
took  place."      It    is   added  by  the  tv/o    following   sections   that    ^*:men 
e.  defendant    has  been   convicted  or  acquitted   upon  an   indictment    for 
an  offense   consisting   of  different    degrees,  the  conviction  or  ac- 
quittal   shall   be  a  bar  to    another   indictment    for  the  offense   charg- 
ed  in  the   former  or   for  any  lower  degree  of  that    offense,  or   for  an 
offense  necessarily   included  therein";    end   "except    v.-here  otherwise 
provided,    the  judgment    for  a   defendant    on  a  demurrer,    cr  on  an  ob- 
jection to    its    form  or  substance  taken  on  the  trial,    or  for  variance 
between  the   indictment    and  the  proof,     shall    not   bar  another  prose- 
cution for  the  same  offense,     if"  a   resubmission  has  been  ordered." 
The  provision  of  another  section    (5333;   that    one  of  the  three  pleas 
to   an   indictment    is   that    "of  a   former  judgment   of  conviction  or  ac- 
quittal  of  the  offense   charged,"   merely  states    in  sim-cle  English 
what    were  anciently  kno'ATi  as   the  pleas   of  autrefois   acquit    and 
autrefois   convict. 

But    "a  defect    in  the  form  or  substance   in  the  indictment" 
IS   not   to   be   confused   v/ith  the  problem  of   jurisdiction,     and      if 
nhe   former  conviction  was  by  a  tribunal    without    jurisdiction"" 
''?ooi^    fr^^^-^°^-'^^r  conviction  will    not   be  good.      State  v.    Jamison 
a39S}    104    .owa    343,     73  N.    ^!J.    831.      Moreover  the  FFo'TTsion  as'  to — 
e   de.ecx    appxxes   only   if  there  has   been  a   judgment    upon  a  verdict 
.Hereunder.      If,    because  of  the  defect,    the   indictment    is    quashed 
before  trial    (Reddan  y.    Stat^   (1S53),    4  C-.   Greene  137)    cr  set 
aside  during  the  trial,  the  defendant   mar  be  r)rcsecuted   utdoh  a  pro- 
^fo^^^^^^^^^^-'^*    subsequently   found   against    hi£i.      State  v.' Smith 
(1893),     88    lo'^  178,     55   :T.    W.   198.      But    -here  a  defendant    is   -oiaced 
upon  trial   on  an  indictment    which  is   not   defective,     "it    is   not 
v.ithin  the  scope  of  authority  of   either  the  attorney. for  the   ?xate, 
or  of  tne  court,    to   take  the  case   from  the  jur-.-,    of  their  own  arbi- 
trary  will,     ana  v/itnout    a  peremptoi^j.-   and  controlling   cause,     and 
again  Jioid  him  to   trial   on  the  same  charge,     although  it   be   newly 
presented;    and   such  a     proceeding   amounts  to    an  acQuittal.  and  mav 
be  pleaded   as    such."      State  v.    Callendine    (1359),     S*   Iowa   288.  This 
iJlJ^Vn   "'^^"'    °:    c^^^se,    that    when  the  trial    is   once  begun  it    can 
under  no    circumstances  be  taken  from  the  jur'-.       h'o"  e-^am^T  e.    the 
aischarge  of  a   juri'  that    is   unable  to   ag-ee  u-ov-"aVp"-»^d^ct    "i  =  'a 
r'^*^^^^^.J°;^2'^  discretion,     and   presents   no    impediment   to    a   second 
.rxai."      otate  v.  T/au.-nan    ^ie7C),     29    lov/a  '^Zo 

5253 


Former  Jeopardy  •*w 

■  The  rule   is   that    after  ai  acquittal    cr   ccnv^ction  the   accused 
shall    not   be  again  tried   for  the  sane  offense  -Miot   tb«t   the  same 
act    shall    never   subject    a  man  to   no  re  thrn  one  rrial^  Hence   it    is 
significant   that    "the  same  act   may   constitute  an  ofy^nse  against 
both  the  State  and  the  mva-icipal    corporation,     and  may  be  punished 
under  both  v/itho-jit    ?   violation  of  any   ccnBt  itut  ional      principle." 
To.vn  of  Eloor.ifield  v.   Trimble      (1830),     54   Iowa    399,     6  lU.'i,    585, 
37  Am.   Ret).    212.        In  like  manner  the  same  act   may   constitute  an 
offense  against   the  United   StD.tes    v/hile  also  being  a    crime   under 
the  laws   of   lov/a,    so  that   the  trial,  conviction  and  punishment   of 
the  defendant    under  the  federal   statutes    for  breaking  and   entering 
a   -Dostcffice   v/ith  intent    to    commit    larceny   is   nc   bar  to   a   subse- 
quent   prosecution  bv  the   state   for  bur^larj-   under   an   indictment 
which  charges   the  same  state  of  facts.      3tate  v  .   Moore    (1?C9;,    143 
Icwa  240  . 

A'here  the  defendant,  on  an-neal,     secures   a   reversal    of  a    iudr- 
r.ent    of   conviction  becsuse  of*  error   in  the  proceedings    in  the   court 
below,     he  nay  be  tried   again.      St  at  e  v  .    K.:o  us  e      (1871/,     33  lo  ./a 
365.    It    is   said  that    "jeopardy  Ti"not    ccnsidered  as   having   attacnei 
if  the  defendant    is    erroneously   convicted  and  obtains   a   reversal 
of  the  judgmient."      Bat    if  the  defendant    was    convicted  of  an  offense 
which  is    included   v/ithin  a  greater  offense  v/ith  which  he  v/as 
charged   in  the   indictment,    the  conviction  cf  the  leaser  amounts  to 
an  acquittal   of  the  greater,     so   that    "r   defendant    v/ho   has  been  tried 
on  an  indictment    charging  murder   in  the   first    degree  and   convicted 


Of  manslaughter  orJ-y,     cannot   be  a^-ain  tried   for  the  graver  offense'j 
Gtate  V.    felker  .'    (19C7),       133  Iowa  489. 

Pormer   jeopardjr   applies   only   when  there  ha?   been  e    real    prose- 
cution for  crime.      If  a   wrongdoer,     not    having  been  accused,  hastens 
before  a  magistrate,     confesses   to    having   committed  a      certain 
offense  and  pays   the  fine   imposed,    the  st'.-'te   i^   not  b?rred   from  a 
svbsequent   prosecution.      Such  vol untar--   confei?sicn  and  ra-vTient    cf 
fine   is   not   a   criminal   prosecution    (Stcte  v.   Bartlett    (191'?), 
Icwa   457).  


St3te  V.   Redman. 
Supreme   Court    of    Icwa,    1364,  17    Icwa    32?, 

Ahat    was    intende::  to  be  a  verdict    cf  guiltv  was    rendered 
against   the  defendant    in  a   former  trial   of  the  same  offense,    but 
was    set    aside  on  "account    cf   informality",    over  the  defendant's 
objection.     These   facts:    were  lolerded  bv'the  defendant    in  bar,    but 
a  demur-er  tc   thi?    lolex.    was    sustained  l-  the  court.    The  defend-\::t 
arpealed . 


5233 


i 


^. 


Former  Jeopardy  ^^ 


Dillon,     J.    - 


In  general,     it   may  te  said  that    jeopardy  teg  ins    when  a  trial 
jury,     upon  a   sufficient    indictment,     in  a- court    of  competent    juris- 
diction,'   has  teen   impaneled   and   sworn  to   try  the   cause.      Eisr.. 
on  Cr.   Law       1)659;    2  Lead,     Cr.    Cas .,     558.   But    the  jeopardy   is   not 
considered  as   attaching   in  such-  cases,  although  the   jury  has  teen 
sworn,     if  during  the  trial   the  presiding    judge  tecomes   so    ill    as 
to   te  unatle  to   proceed^ Nugent   v.   The  State.     4   stew.   &  Fort., 
72);    or   if  a    iuror •s'TTlness   prevents    him  from  sitting   further 
on  the  trials  (iling  v.   Scaltut.    2  Leach,  62C ;    United   States  t. 
Haskell.    4    Wdsh.,     4C2;    Rev.,     j    0  4804,     4820)  ;    or   if  tne  prisoner's 
sudden   illness    incapacitates   him  from  attending  or  managing  his 
defense  ^King  v.    Stevenson  ,    2  Leach,  541 )  ;    or  if  the  jur^^     after 
full    deliberation,    are  unable  to   agree^(Rev.,     0   4821,     4322);    or 
if  the  defendant    is    erroneously  convict; ed,     and  ottains   a   re^'er- 
sal    of  the   judgment  .      In  all    such  cases    he  may  te  put    upon  his 
trial   again,     and    cannot    claim  a  discharge  cr  acquittal  tecause  a 
jury  has  teen  once  tefore   impaneled  and   sv/orn  to   try  the  cause. 
And   we  understand  the  settled     doctrine  to   te,    that    where  the  ver- 
dict   is   a   null  ity    (   or  so   defect  ive  that    no    judgment    can  te   ren- 
dered upon  it  J,  the  defendant   may  again  te  put    upon  his  trial,     cer- 
tainly where  the  verdict    was      intended  to  be  one  of  convict  ion,_ 
for   in  such  case   it    is    rather  a  mistrial   than  a  legal   putting   in 
jeopardy.      1   p.ish.    Cr.   Law,     j)   6731 

Thus    it    has    even  been  held,    that    if  the  court    refuses   the 
constitutional    right   of  the  State     to   a   jury  trial,  and   itself 
tries  the  defendant    at    his    instance,  and   acquits   him,    this_  is 
no   bar  to   another  trial    at   the   instance  of  the  State,     although 
the  State   Constitution  provides   that    no    person  shall   be  ^wice 
put    in  jeopardy   for  the  same       offense.    "The  reason   is,  '•      says 
Blackford.     J.,       who    was   the  organ  of  the   court,     "because  the  de- 
f endant,     in  such  a   case  v/as   not   legitime   modo    acquietat us  ."      State 
V .   Mead.     4  Blackf.,     X9.      We  need   not    go    near  this    quest  ionatXe 
£::t  ent   t; o   sustain  the  action  of  the  court   telov/  in  the  case  at   bar. 

So,     where   it    is   held  that    an  assault    and  battery   is   merged 
in  the   felonj-,    and   a  prisoner,  indicted    for  murder,     is    found   guilty 
by  the   jury  of  an  assault    and  tatter;/,    the  verdict    is   a   nullity, 
the  defendant    is   not    in  jeopardy,    the  proceeding   is   a  mistrial,    and 
the   judgment  may  te  arrested   and  the  defendant   again  te  put    upon 
his   trial   on  the  same   indictment.      Wright   v.   The  State.     5    Ind,,     527, 
If  the  verdict    is    insufficient    in  not    properly   responding  to   the 
whole   indictment,  and  the  defendant   appeals,    the   judgment 'v.nil  te   re- 
versed  and  the   cause   remanded   for  a   nev/  trial,      Marshall   r.   Common- 
'i^-^th,       5   Gratt  .,     66  3;      The  State  v.   Mo  ran.     7    Iowa;     255;    .Vils'cn" 
"li-?2:?  31?.t5i_  ~<^   Ohio,    25;    Ray  v.   The  St"ate.     supra;    Webber  v.THe 
'-^'^^te,  TTC   I  '0  . ,     4  ;    T  ii  e  _.3t_a  t  e  v.    SufTcn.     4   Gil  1  Tr~?9¥ .  — OrT    if  t  ::e 
verdict    is   defective  and    "uncertain   in  not    responding  to   the  whole 
issue,  the  trial    court   may    itself   set    it   aside  and  trv  the  rrlscner 
again  on  the  same   indictment.    Co  mmo  n  wea  1 1  h  v  .    Kat  t  o  n."  3  Gratt.,     62;^ 

B265 


•«'" 


Ponaer  Jeopardy  ^2 

where  the  prisoner  objected  to   the  verdict    £.3    imperfect,     snd  the 
CO  an      set    it    aside  and  av/arded  a  venire  de   novo  .    %^-en  tne  trial 
v;as   again  crought    on,     he  moved   "tc  be  discharged,     on  the  ground 
that    having-  been  tried  on  the   indictment,  and  tne   court    naving 
arrested  the  judgment    on  the  verdict    found,  because   net    sufficient 
tc    warrant    judgment,     he  was   not   liable  to  be  again  triea   .or  tne 
-seme  offense;"  but    it    was   adjudged  that    he  v;as  thus   liaole.      In 
Lav/rence  and   Donovan  v.   The  people,!    Scam.,  414,     which   is    m  all 
resTDects    in  i-cint,  the  verdict    of   guilty  was    defective  under  tne 
statute,     in  not    finding  the  age  of  the  defendant.     The   court   be- 
lo-.v,     en   its   ov/n  motion,     set    aside  the  verdict    and  ordered   a 
venire   de  novo  .      per  Smith,     Justice;    "The  only  question   is   on  the 
■oower  of  tiie  Circuit    Court   to    set    aside  a   defective  verdict    on 
which  no    judgment    could  be   rendered,     and  to   award  a  venire  de   novo . 
The  ri^ht   to    exercise  this   power  cannot   be   questioned.      It    nas 
teen   exercised    in  numerous    criminal    cases,  and   is    undoubted."   To  the 
same   effect,    without    quoting,  see  peo-ple  v .   Clcutt,     2      Johns.    Cas  ., 
XI,    the  third   Dcint    decided.      Id.,     311,     per  Kent,     J.;    ^.er,.   v. 
?:eit  e.     1   Ld.    Raym-,138,     ^.nd  £rd   Holt's    judgment,    Rep .,  ^  ITL  ;    S .    C. 
Ccmberback's   ?..,     4C6;    Commcnwealth  v     Percg-'-Jl,     4  Leigh    (Va,;;    686; 
The  St^te  v.   Duncan.     2  HfcCcrd,  129,     v-here  the   Court    av/arded  a  ne\/ 
trial   on  a  defective  special  verdict;    1    Chitty   Cr.   Law,  541 ;    1   Bish. 
Cr.   Lav/,     ()  673.   The  State  v.    Call  end  ine,  B   Iowa,     285,     dees    not    con- 
flict   with  this  viev/.      Tne  cnly   ccubt    which  has  been   raised,     is 
whether  the  verdict    could  be   set    aside,     a  venire  de   novo    av/arded   in 
a   capital    case.      Rex .   v .   Hug  gins.     2     Ld .    Raym.,    15S5;    and   see  Rex. 
V.   Burridge.     3  P,    fes  .,     4  39,     496 .      Frcir.  these   cases,     and   from  a 
general    examination  of  the  authorities,     we   feel    safe   in  laying  down 
this   general    rule;      that    where  the  verdict,     especially    if   intended 
to   be  a  verdict    of  guilty,     is   so   defective  and   uncertain  that   t  h'e~ 
court    does    not    knov/  for  v/hat    offense  to    pass    judg^eatt^^  it   nay  be 
set    aside  by  tne   court,     even  against    the  defendc-nt's   objection,     and 
the  -proceeding    is   no   bar  to    another  trial  .    ATnis    is   good   sense.   T-"ie 
defendant,     in  the   case  before   us,     nas    never  been  acquitted.   The^ 
jur^'  did   not    intend  to   acquit    him.      They    expressljr   found  him  guilty 
If  the  court    had   pronounced    judgment    against    him,    and   he  had  appeal- 
ed the  appellate   court,     under  the  authorities    r.bcve   referred  to, 
it    v/ould   not   have  discharged   him,    but    remanded  him  for  o    nev/  trial. 
It    has    never  been  adjudged  that,     in  such  a   case,    he   cculd   success- 
fully plead   once   in   jeopardy.      The   course  taken  belov/  amounts  to 
the  same  thing;    and    is,     ar:    v/e  have  shov/n,     v/eil    warranted  by  the 
authorities.      We   are  not    unmindful    of  the   rights   of  persons   accused 
of  crim.e,    but   dc    not    see  hov/  this    ruling   can   erjev  be  used  to   oppress 
cr  unjustly   injure  them.      It    accords,    licreover,     v/ith  the  letter  E.nd 
spirit    of  cur  Code  of   Criminal    Procedure.      This   ha3_scu,jht   to    pre- 
vent     persons   convicted  cf  crime,    from  escaping   deservea  punish- 
ment   on   refined   subtleties   and  Llj-ck  letter  precedent s,  where  nc 
substantial    interest    or  right    has  ^jeen  prejudiced.     T-*is    coimendable 
reform  ought    not   to    find  an  obstacle   in  the   illiberality  or  the 
prejudices   of  the  courts.      Tc    order,     as   v/e  are  esked  to    dc,     upon  the 
facts    disclosed   in  the  record,    the  absolute   discharge  of  the 

526  3 


Fomer  Jeopardy  ^3 

d'^fend^^nt      would  stril<e  anv   fair  mind,     untutored    in  the  meaningless 
technicalities   and  hair-splitting  dist  ir.ct  icns,  formerly  too    T>reYe- 
lent    in  the   criminal   lav/,     as   no   less    ridiculous    and  absurd  than 
subversive  of  the   ends   of  putlic   justice. 


Judgment   affirmed . 


State  V .    Spayde  . 

Supreme   Court   of    Iowa    (1899),    IIC    Iowa   726,     8C    N.W.   1C5S. 

Deemer.     J.    -      Defendant   was    first    indicted  by  the  grand   jur:,'- 
of  Humboldt    county.      A  trial   was    commenced,  a   jury   impanel  ed^and 
sworn,    the      evidence  of  the  state  adduced,     and  the  defendant    had 
testified,     in  his   o.vn  behalf,    that    he  nad   affixed  the  signature^ 
to  the  note  which  it    is   claimed  was    forged   in   j/ebster  county.   There- 
UTDon  the   court   trying  the  case  ordered  the   Jury   discharged,     and 
held  the  defendant   to   bail   to    answer  to   a  warrant    from    .'/ebster 
county.      This   action  of  the   court    v/as   objected  to  by  the  defendant, 
who    insisted  that,     as   there   was    evidence  tending  to    shov/  that   the 
crime  was    committed   in  Humboldt    county,    he  was    entitled  to    a  ver-^ 
diet    of  the   jury  thereoji,^  The  objection  was   overruled,  and   from  tne 
ruling  the  defendant    ar>r>eale(J  to   this    court.   This   appeal^  has   not, 
however,    teen  presented"  as   yet,  and  with  that    we  have   nothing^  to   do, 
exept    in  so    far  as    it   may  affect    the  further  proceedings..      There- 
after the  grand   jury   of  \7eb3ter   county   returned   an  indictment 
against    defendant,     charpiing  him  with  the  same   forgerv   covered  by 
the  indictment    in  Humboldt    county.      The  trial    from  v.-hich     this 
appeal   was   taken  was   held    in   Webster   county   upon  this   second    in- 
dictment.     To   that    indictm.ent   the  defendant    pleaded   not    guilty 
and  a    former  acquittal    in  the  district    court    of  Humboldt    county. 
The  jury   returned   c   verdict    of  guilty,     and  by  s    special    interroga- 
tcT^/-   found  that    the  blanks    in  the  net  e  v/hich  it    is    claimed  v;as 
forged   were  filled   out   by  defendant    in_Webster  county. 

Several   matters   are  presented  on  appeal,    but,     as   we  view 
the  case,     it    is   not   necessary  to    consider  all   of  them.   The  first 
point    argued   is   thr-t    defendant    vas   placed    in   jeopardy    in  Kiambollt 
county,     and  that   the  dischar;Te  of  the  ^u.vy  operated   as   an  ac^.uittrl 
cf  the  offense;      There   is   no    doubt   that    this   position   is   correct, 
if  the  district    court    of  that    county   had    jurisdiction     cf  the 
offense.      If   it    did   not    hc.ve   jurisdiction,    then  the  dischar^~e  of 
the   jury,    and  the  oi-der  holding  the  defendant   to    answer  to    Wiiat - 
ever   indictment    mi.iht   be  presented  by  the  grand    jury  of    webster 
county,     v/as   authorised  by   sections   5389   and   5o9i   of  the   Code,     whicii 
provide,     in  substance,    that,     if  the  offense  was   comjnitted  within 

5265 


.■Worker     jeeps  rdy  ^^ 

the   exclusive   jurisdiction  of   another   county  of  the   state,    the 
court   rrav  disch?rge  ^  he  duty,    and  direct    the  defendant   to  be  cod- 
mitted    for  such  t  i:ne  as   shall    ce   re3-scn£.ble  to   s-vait    a   v/arrant    from 
the  proper  county,    or,     if  the  offense  ce        bailable,     he  nay  be  ad- 
mitted to  bail,     etc.      The  pivotal    quest  ions,  then,     are:    [1  /    Did  the 
district    court    of  Humboldt    county  have   .jurisdiction  cf  the  offense? 
(2)    Was   the  offense  within  the   exclusive   jurisdiction  of  the   dis- 
trict   court   of   V/ebster  county?       u- 

At   the  trial    ir.  Humboldt    county  the  state  adduced    e^;-idence 
tc    show  that   the  offense  v/as    committed    in  that    county,     and  the 
tri?-l    court    was    evidently  satisfied   when  the  state   rested   its   case 
that    it    had   jurisdiction.      Defendant  then  went    on  the  stand  testi- 
fied that    he' did   not    sign  the  name  in  ?J-imboidt    county.      Thereupon, 
on  motion  of  the  countj'-  attornej',     and  against   the  objections     of 
defendant,    the  court,   made  the  order  to   v/hich  we  have   referred.    If 
the   evidence  as   to   venue   is    undisputed,     end  that    evidence  sho-./s, 
that    the   court    does    not   iiava   jurisdict  ion,  then   it    is   clearly  the 
duty  of  the  court   tc    dischxc.rse  the  defendant,     and   it   may  make  the 
order  authorized  ''oir  the  sections   of  the  statute  to    which  we  have 
referred.     Lut    if  the   evidence   is    in  dispute,    or  if  the  state  has 
adduced   evidence  tending  to    shew  venue,    then  the   iuesticn  is   for 
the   jury,     and  the  defendant    is    entitled  tc   their  veriicx  .   That 
rule   is   peculiarly  applicable  to   the  facte   disclosed  by  the  re- 
"cc'd  before  us.      Here  ,     as  v/e  have  said,    there  v/as    evidence  on  the 
part   of  the   stete  pending  to    shov;  jurisdiction  ^nthe  Hiujruboldt 
district    court,     and  the  only    evidence  to   the  contrar;'  on  which  the 
court    assumed  to    act    vras  the  care   statement    of   defendr".  I:  that    he 
-jid   not    sign  the  name   "Franklin  Rcv/e"    in  Humboldt    ccunty.      That 
statement   may  have  been  absolutely  true,     and  j'-et   the  defendant 
may  have  been  guilty  of   fcrgine;  the  note   in  Httmbcldt    ccunty.   The 
e-'idence  sho;vs   that   the  note   which  it    is    claimed   v/as    forged   was 
p-i-tly  printed   and  partly   in  v/riting.      It    had   no   legal    efficacy 
until  tne  blanks   were   filled,    and  the  rromise  given  a-orr-rent    legal 
effect.      Had  the  defendant    signed  the  name  to  the  print  r;d  blank  in 
:Vebster  county,     and  afterwards    filled   ur  the  blanks    in  Humboldt 
ccunty,    there   can  be  no   doubt,     v/e  think,'    th-a.t    he  would   have  been 
guilty  of  forgery,    and   that    the  venue  would  have  been  rrc-^arl" 
laid   in  Humboldt    ccunty,     either  because  the  crime  was   the-r-e   com- 
mitted,   or  because  som.e  cf  the  acts   or  effects    requisite  -^c   the 
consummation  cf  the  offense  v;ere  committed   in  that    county,     under 
section  5157  of  the  Code.      In  everv  criminal    case  jurisdiction 
nust   be  shov;n,  and,     where  there   is   a   dispute   in  the   e--:de-.cp  as  to 
-he  venue,    the   jury  raust    detei^nine  t  het '  disput  e,    the  sar.e  as    it 
does      any  other   issue  of   fact  .      Had   defendant   testified,     when  on 
the     v/itness   stand,    that    all  the  acts    neoessar-  to  r.iake  out   the 
offense  were   cor.r.uttea   in  another  county,     it   mav  be    (:.  -ocint   how- 
ever,   tnat    we   dc    not    decidei   that   he   could  not   there.'i'ter  be  heard 
to    say  that    tne   court    was    in   error  In  acce-ctir^   his    evidence  a:id 
discharging  the  jur:/.      Zut   that    is   not    the^case.      Here  he  testified 

526  3 


Former  Jeopardy  46 

simply  that    he  did   not    sign  the  name   in  Humtoidt    county,     and  he   in- 
sisted that,     as  there   was    evidence  tending  to    shcv/^.  he   Jurisdiction 
of  the   court,     he  was    entitled  to   the  verdict    of  the   jury  on  that 
issue.      ;ve  think  his   contention  is    correct,    and  that   the  court   of 
Humboldt    county  should  have  submitted  the  case  to  the   jur:,-. 

Under  the   record,    as    it    is   presented  to    us,  the  district 
court    of  Humboldt    county   had   no    authority  to    discharge  the   jury, 
and    its   act    in  so   doing   amounted  to    an  acouittal    of  the  defendant. 
State  V.   CUlendine,       8    Iowa,    28S,  and 'cases    cited.    State  y.    Clark. 
6'^   Iowa,     1^5^;     is   not    in  point.      There  the   indictment    was    held 
insufficient,     and    in  effect    set    aside. 

Some   reliance   is   placed   on  section   5157   of  the   Code,     v.-hich 
provides   that,     "when  a  public   offense   is    committed  partly   in  one 
county  and   partly   in  another,     or  v/hen  the   acts   or  effects    con- 
stituting or  requisite  to  the   cons-jmmat  ion  of  the  offense  occur 
in  two   or  m.ore   counties,     jurisdiction   is    in  either  county."   H'ne 
difficulty  with  this   contention   is   that    it    is   universally  held 
in  such  cases  that    the   court    firs-c   taking   Jurisdiction  holds    it 
to   the   end.      In  this    case  the  district    court   of  Humboldt    county 
first    assur.ied   jurisdiction,     and  the   indictment    was    not    found    in 
V/ebster   county   until    after  the  discharge  of   the  trial    jury   in 
Humboldt    county.    B^   rart  e  .Baldwin.     69    lov;.-..,     502;    Carter  v.   Barlow, 
105    Iowa,     78. 

Again,    the   Webster  county   court    instruct  ed,     in   effect,    that, 
if  the  jury   found  the  offense  was    committed    in  Humbcldt,    then 
they  should   acquit,    but,     if  they   found    it    v;as    committed   in  Webster 
county,    then  they   should  convict;    -.nd,     in  answer  to   the  special 
int  errogator;/,  t  he:!r   found  that    the  blanks    in  the  note  were   filled 
out    in  Webster   county^   vVe  do    not   think  there  was   any    evidence   just- 
ifying this   -special "Tlnding;    and,     if  there  was,     such   finding   is 
by  no   means   conclusive.    If  the  blanks    were   filled   out    in   Webster 
county,    this    v/culd   not    constitute  forger^^.      At      most,     it    would  be 
nothing  more  than  a    finding  that   the   crime  was   nartlv   comj^iitted 
in  that    county.   The   e-^-idence     showing  the   forgerv  to"  have  been 
committed   in  Humboldt    county    is    sc    strong  that    anv  other  fi::ding 
is    evidently  the   result    of  passion  o_r  rrejudice,     and   should   net 
be  allowed  to    stand^^      '[fT  is    evident   t^'attHe" trial    judge  did   not 
regard  the  finding   of  the  Humboldt    count v  court    conclusive  on  the 
question  of   jurisdiction.      If  not    conclusive,    then  there  was   the 
m.ore   reason  for  that    court    submitting  the    issue  of  venue  tc   the 
jury  that    had   authority  to   tsass   upon  the    luestion,     i.e.      the 
jury   impanelled  tc   try  the  defendant    in  H'jmbcl:lt    count 


•^4-  -r 


Prom  v/hatever  point    of  viev/,     it    is   apparent  that    the  trial 
court    v/as    in  error  in  not '  sustaining  defendant's  motion   for  a 
new  trial.     The    evidence  shows   without   diiirute  that    he  was   put    in 
jeopardy   in  the  Humboldt    count"  district    court,     and  his   -nlea  of 
former  acquittal   should  ioave  been  sustained. 

5263 


Former   Jeopardy  46 

It    is   argued  that    a   confession  said  to   hare  been  made  by 
defendant    v/as^not   voluntary.      There   is    some  conflict    in  the   evidence 
on  this   point,  and  the   court    submitted  that    issue  to   the  jur>-.    Ii 
there  \vas    error,     it   v/as    v/ithout    prejudice;    for  we   are  of  opinion 
that   the   evidence  shov/s   the  confession  to   have  been   entirely  volun- 
tary.     Some  other  matters   are  discussed,    but    it    is    not    important 
that    7/e   consider  them.      For  the   error  pointed  out,    the   Judgment    is 
Reversed  . 


Scott   V.   The  United   States. 

Supreme   Court    of   Iowa,     1845,     1  Morris    142. 

per   Curiam.    Iviason.     Chief   Justice.    -  The  plaintiffs    in   error 
were   indicted    in  the   court   belcv/  for  riot.      Cn  the   trial,         their 
counsel   offered    in   evidence  the  transcript   of  a  trial   and   judgment 
before  a   justice  of  the  pe£.ce,     v;herein  Scott    v/as    tried   and    fined 
for  an  assault    and  battery,     and  also   offered  to   prove  that    such 
trial   and   fine   was    for  the  same  offense   for   which  he  stands    in- 
dicted  for  a   riot.     This   testimony   was    rejected  by  the  court.   This 
is  the   first    error  assigned. 

We  think  the   erridence  was   properly    rejected,      lie   man  shall 
be  tv/ice  punished   for  the  same  offense,    but    here  the   se?ond  punish- 
m.ent    sought    to   be   inflicted   is   for  a   different    offense.      The  great- 
er  includes   the  less,    and  the  punishment    for  a   riot    wo -old  be  a   de- 
fense against    a  xirosecuticn  for  an  assault    and  battery,    but    not 
v'-jce  versa.    If  the  rule  sought   to  be   estr.blished   In  this    case  be 
correct,    Then  dovmright   murder  might    often   escape  vaith  the  nunish- 

m.ent    for  a  mere  assault    and  batter^/    

Affirr.ed. 


Stat  e  V  .    Fost  «=r. 
Supreme   Court    of   Iowa,    1671.    53   lov.-a   535. 

To   an  indictment    for  assault   with  Intent   to    inflict    a  great 
Dodily   injury,    the  defendant    pleaded   a    former   judgm.ent   of  con- 
viction before  a    justice  of  the  per.ce,     on  a   charo-e  of  c^ssa^olt    and 
batter:,r,     with  an  allegation  that   both  charges   were   founded  upon 
tne  same  act.      A   demurrer  to   this   plea   having  been  overr^jlea,     the 
state  appealed. 

Beck.     Cr. .   J .      -  The  demurrer  co-jld  cniy  have  been  overruled 
cy  the  district    court,    upon  the  view  that   the  offensea  ciiareed 

5262 


Former  Jeopardy 


47 


a-e      in   each  case,     identical,  or  the  one   for  which  defendant    -vaB 
conVicted  before  the   justice   includes  the  one  cnarged   ^^  t^e 
indictment.      Put    neither  proposition  can  be  admittea.      me  demurrer 
therefore,    ought   to   have  been  sustained. 


and  battery,    and  assa'-iLt 
are  degrees   of  the  sanie 
named      is   of  a  lower 
the  higher  degree.  To 
While   an  assa-xlt,     v/ith 


Admitting  that    the  offenses   cf  assault 
with  intent   to    commit    a  great   bodily   injury 
offense,     it   must    be  conceded   that    the   first 
degree,     and  does    not    include  the_  offense  of 
this    proposition-Thtre  lidhfr  be-  no   objection, 
an  intent   to    commit    a  great   bodily   injury,  may   include  an  assault 
and  battery,     it    is    clear  that    the  assault    and  battery   cannot    in- 
clude the  higher  assault;    the  less    cannot    include  the  greater.   A 
conviction  or  acquittal,     in  order  to  be  a  bar  to   another  prosecu- 
tion,   must   be  for  the  same  offense,    or  for  an  offense  of  a  higher 
degree,    and   necessarily   including  the  offense  for  v/hich  the  accused 
stands    indicted.      It    follows   that    a   conviction  or  acCiuittal    for  a 
mino  r  o_f  fens  e   is    no  bar  to   a      prcsqcui~ionrT5-yC£  greater  •t^ii'tmati, 
•^cept  TnT^eT^c   of  acquittal — f u r ■■  iilS^s  1  aught  er  v/ltTCh  v/ould  bar  ' 
an   indictment    for  murder,     for  the   reason     that    if  the  defendant    was 
innocent   of  the  killing,    without   mialice,    he  could   not   be  guiltj; 
of  the  killing   with  malice.      Scott   v.    U.    S.,    Morris,    142;    Hunt   v. 
St  at  9.     25  Miss.    37S;   Burns   v.   People, 


1   Parker,    182 


This   is   substantially  the 
Revision,     which  is    in  the  folio 
has   been   convicted   or  acquitted 
consisting  of  different    degrees 
be  a  bar  to   another   indictment 
mer  or  for  any  lower  degree  of 
necessarily   included  therein. "~~ 
v-^as    convicted  of  an  assaulT*  and 
to   the  offense  of  assault    with 
which  is   a  highe:>,cf f ense.    and 
offense,     assault    and   b'kttery,    o 


rule  of  section  472C   cf  the 
wing  language:    "When  the  defe.idant 
,     upon  an   indictment    for  an  offense 
,    the  conviction  or  acquittal    shall 
for  the  offense  charged   in  the  for- 
that    offense,    or  for  any  offense 
Now  we  nave   seen  that    defendant 
battery.      This    conviction   is    no   bar 
intent   to    do    a  great   bodily   injury, 
not    necessarily   included   in  the  less 
f  which  defendant    was    convicted. 


Reversed . 


State  V.    Gleason. 
Supreme   Court    of   Iowa,    1881,       56    Iowa..  2C  3,       9  N .    W.   126. 


Seevers 
""ollows 


J.    - 


.     "  _•_   -  The  defendant   pleaded   a   forraer  convict  ion.  as 
"That    as   to   the  alleged   stealing  of- the  monev  and 


.     ,.    .         ^      .  „         ^    ^   --    — -^.    in  this 

indictment    charged  against    him,     he  was   on  -   dav  of  September,    1880, 
charged  by   infonnation  on  oath  in  due   form  before   John  A.    Jones, 
a   justice  of  xhe  peace   for  Polk  county,     Iowa,    and  being  arrested 

526  3 


Former  Jeopardy  48 

plead  to    said   charge,     and  the  said   cause   coming  on  for  trial   before 
said   justice  a   judgment   of   conviction   v/as    rendered   against   tnis 
defendant   by   said    justice,     and  he  was   ordered  by   said   judgment   to 
pay  a    fine  of  twenty  dollars   and   costs,    thirteen  dollars   of   v/hich 
fine  and  costs   he  then  and  there  paid  and   v/as   discharged. _    And  the 
defendant    says   that    the  said   charge  v/as   and   is  the  same  charge  of 
stealing  which   is    preferred   against   him  in  the   indictment,     and  he 
is  the  same  person  who   was   prosecuted   and   fined  as    aforesaid  before 
the  said   Jones  . 

And  the  defendant    further  says   that   the  prosecution  before 

the   justice  of  the  peace  was    not    procured  by  him,     v/as    net    in  any 

wise  fraudulent    or   collusive,    and  that   he  v/as   arrested,     charged  and 

fined   at   the   instance  of  prosecutors    who    were  and   are   in  nov/ise 

in  his    interest,     and  this' he   is   ready  to  verify.      The  defendant 

brings    now  here   into    court    attached   hereto   the   said    information 
....  .  .  -   -  .         .       ,       .     .       ^^^ 

lunt. 


To   the  foregoing  plea  of  former  conviction  the  State  de- 
murred  on  the   fcllov/ing   grounds: 

1.  The   indictment    charges  larceny   from  the  person  and  de- 
fendant   was    charged   and   convicted  of  petit   larceny. 

2.  The  offense  charged   is   not   the  offense  for  v/hich  defend- 
ant   was    convicted. 

3.  The  justice  had  no    jurisdiction  of  the  offense   charged 
in       the   indictment    and   could  not    convict    him  thereof. 

The  defendant    was    charged   and   convicted  before  the   justice 
v/irth  the  crime  of  petit    larceny,     v/hich   is   a  misdemeanor  punish- 
able by   fine  or   imprisonment    in  the   county   jail.     The   indictment 
charges  larceny   from  the  person,     v/hich   is   a   felony.      The  statute 
defining  the      crime   is   as    follows:    "If  any  person  comjnit   the   crime 
of  larceny  by   stealing   from  any  building  on  fire,    or  by   stealing 
any  property   removed   in  consequence  of  a:-,  alarm  caused  bv   fire, 
or  by  stealing   from  the  person  of  ^nothei-,     he  shall   be  -ounished 
by   imprisonment    in       the  penitentiary   not    exceeding   fifteen  years." 
Code    0    3905. 

I^  "t^e  State  v.    Foster.     33  lov/a,     525,     it    was   held  that    a    con- 
viction before  a    justice  of  the  peace  on  a   charge  of  assault    and 
toattery  was    not    a  bsr  to    an   indictment    for  »issauit    with   intent    to 
commit    a  great   bodily   injury,  based  on  the  same  transaction.      The 
correctness   of  this   decision   cannot,     we  think,    be  successf'olly 
denied,    because  the  person   charged   v/as   not   tried  before  the   justice 
10  r  the  intent    with  v/hich  the  assa-jlt    v/as    committed.      The  intent 
originated   v/ith  and   was   the  act    of  the  defendant,      rie  alone  was 
responsible  therefor.     The   intent    graded  the  crime,     or   rather  be- 
cause 01    it    there   v/ere  tv/c    crimes. 

526  3 


Former   Jeopardy  49 

Sc    in  rcbberj-.      For  there  must   be   force  and  violence  or 
putting   in  fear.      Therefore   it   nay  be  said   a   convict  icn   for  the 
larceny   v;ould   not    car  an   indictr^ient    for  the   robbery  because  the 
person"  charged  iiad   not  been  punished   for  the  whole  tning   -   crime 
or  crimes   committed.     This    is  true  also   as  to   a  breaking   v/ith   in- 
tent  to    corni.at    larceny,    when  the  offender  has  'ueen  acCiUitted  or 
convicted  of  the  larceny  c^nly . 

17ov,-  in  the  case  at   bar   it    v/ar?   net    essential    in  order  there 
chould  be  a  conviction  under  the  indictment   that    an  assa-oit    should 
be   established.      It    is,    however,    difficult   to   see  hov/  there   could 
be  a  larceny   from  the  person  v/ithcut    a  technical   assault.      V/e 
apprehend,    however,     if  a  person  should  be  sleeping  on     the  ground, 
v;ith  a  hat   lying  loosely  over  his    face,    the  crime  v/cjld  be   com- 
plete  if  ancther  sho'Jild   steal    and    carry   away  the  hat    v/ithout    dis- 
turbing the  sleeper.      Other  cases   of  r'like   character  m.iffht   be 
suggested.      The   intent    is   and  must    be  the   same   if  the  larceny  be 
by  stealing  from  the  person  or  from  a  house  or  other  place.  The 
Intent    is   the  same   in' grand   and  petit    larcenv.      The  St  at  e  v . 
Murray.     55    lov/a,  530  .      Stealing   frcmthe  person   is   larceny  and 
nothinr  more  -    it    is   so   designated   in       the  statute.      For  the  lar- 
ceny the  defendant    was   tried'and   convicted  by  the  jurtice  of  the 
peace. 

Suppose  a  person   rightfully   enters   a  building  on  fire   and 
feloniously   steals   and   carries   av.'s.v  Tsro-nerty   anc.    is    charged 
and   convicted   v/ith  the  larceny,     should   he  l  e  again  riunished  be- 
cause the  building  v;as   on  fi:-e,    or  if  -punished   for  stealing  goods 
removed   in  consequence  of  a   fire,     vihculd  he  be  again  runished   for 
the  sam.e  thing . 

In  Minnesota   there   is   a   statute  making   it   a    felony   if  larceny 
is   cciw.itted   cy  stealing   fron  a  shop.      In  the  citate  v.    wlies. 
(i^inn.)    4  IT.    v;.  Rep,      615,    the  defendant    was    indiorec~under  the 
statute  aforesaid   for   stealing  a  hat    from  a  shop.      The  defend'nt 
pleaded  a   former   conviction  for  the  same  larceny  before  a   justice 
of  the  peacs.      It    was   held  this   was   a  bar  and   he  ccold   net   be  again 
prosecut  ed. 

In  this   case  the  only   intent    on  the  t-art   cf  the  defendant 
was   to   com-mit   larceny,  and  as   he  had  been  T5unished   ^cr  a.1.1   thet    he 
did  or  intended  to    do,  it    was   held  he  ccald  not    c  e  again  punished 
for  the   same  offense. 

TV^o  ^15®  st-tute  crest  es   the  offense  and  declt.res   the  T^unishment. 
The^de.enaant    commr.tted  the  offens*-.  and  the  State   ^n  the        first 
"^'^l^^t   ^^^-^^  ^°   chargr  or  allege  a    fact    which  v;ouId    5  f    estab- 
J-'f^^S!;^  ;rrZ'^i^^^  pun:sh:ient.      But    such  fact    vras   not    caused 
:;:.;^7,;?,5^;J  ^:-  *^^  defendant.     The  extent    of  -he  ^unish^^ent 
?h:^  d^ferl.;^^'-  gradethe  crim.e  or  ceate  f.vo   offen^^es.     so  that 

defendant    car.  be  t'.^-ce  punished    fo-  the   sa-re  t-- v-r.pct  <on 

526  3 


Forraer  Jeopardy  5C 

Before  this    can  be  done  the  defendant   nust   have  done  Bomething 
with  an   intent    for  which  he  has    not   been  punished,     or  because  of 
the  act    done,     it    can  be  said  two    offenses    were   embraced  tnerem. 

Beyond   doubt,     we  think,     if  the  defendant    had  been  acquitted 
when  tried  before  the   justice,    this   should  be  a  bar  tc   another^ 
prosecution  for  stealing   from  the  person,    because   if  he  was   not 
guilty  of  larceny  he   could   not   be  of   stealing   from  the  person. 
The  deT-endant,    therefore,     ccidd  not   be  convicted   in  this   CKse 
urJ-ess  the  State   established  the  larceny,     and   for  this   ne  nus  been 
punished.     The  demurrer,  should  have  been  overruled. 

Reversed. 


Stat  p  V  .   Price. 

Supreme   Court    of   Iowa,    1905,     127    Iowa    XI,     IC  3  IT.    W.   195. 

The  defendant    appealed   from  a   judgment   of  conviction  of  the 
crime  of   incest  , 

Deemer.     J.      -  Cn  April   24,    1902,  the  ffrand   jury  of  Ringgold 
county  for  the  April  terra  of  the  district    court    held  therein 
returned  tv/c    indictments   against   the  defendant;    one  for  the  crime 
of  rape,    and  the  other  for  incest.      In  each  defendant    wa-3    charged 
with  having     had   intercourse  with  one  Gertie  Blackmore,    a  step- 
daughter,    who    was    under  thegge  of  fifteen  years.      The  chars-e  of 
rape  was    first   tried  to    a   jury,    resulting   in  a  verdict    of  not 
guilty.     Thereupon  defendant    wag   placed   upontrial    for  incest.   To 
the  indictment    for  that    offense  he  pleaded  not   guilty,    and  also 
pleaded  his    former  acc^uittal   of  the  charge  of   rape  as   a  bar  to   the 
charge  of  incest  .   and  as   an  adjudication  that   he  was   not    guilty  of 
incest.     A  demurrer  to  this   plea   was    interposed  by  the  State,     v/hich 
was   submitted   and  sustained.      Defendant    also   ofiered   in  evidence  on 
the  trial   of  this    case,     which  was    for   incest,    the  record  of  the 
proceedings    in  the  rape  case;    objection     to    which  was   sustained 
by  the  trial    court.     After  the  evidence  was   all    adduced,  the  jurv 
m  this   case  was    instructed  that    defendant   must   be  convicted,  if" 
^^3.   ^'^'^•^  ^°-^  '  "^  ^^"   ^'^  sexual    intercourse  which  took  place  on  or 
;    t^-  l.slrrniber  12,    19C1,  thereby   excluding  from  the  consideration 
of  the  jury  any  act   of   intercourse  which  occurred  prior  to   that 
date.      £ach  indictment    charged  that    the  offense  named  therein  was 
coramioted  on  the  1st   day  of  the  preceding  October.  Cn  the  trial    for 
J^;|  tj^  State   was   permitted  to   prove  all    acts   of   intercourse 
thr  Jn^M?        ^^'^^t ire  period   included  within  the   indictm.ent;    but    at 
to    4l,^  M^ni"^  °^   ohe   evidence   it   was    compelled  to   and  did   elect 
0°   about    Oct o?LT«.S^   intercourse  said  to   have  been  committed  on 
list  If-^- iff  l^L^^^'   ^-""".^^^  t^^al   o^"  this   case  the  State  was 
till \lnt.':t  I    :   to   prove  various   acts   of  sexual    intercourse   with 
0?  tSe  ie?-.S    ^f  .f^   J^^   conclusion  of   its    evidence  on  motion 
^Tovernber  l2.iiSi/'  "' ^^  '"   """'^^   ^^°^  '^  ''^    occurring 

5263 


Former  Jeopardy  51 

In  one  of   its    rulings   on  the   introduction  of  testimony  the 
t-ial    r>o-^t    s?id:    "In  this    cF.se  the  State  has   selected  tre  l^tn 
of  iTovemrer.     Another  date.      The  court    is   of  the  opinio::  that      even 
i^   it    should  be  held  thet   the   indictment    for   rape   if^cluaes  z-.e 
crime  of   incest,  thrt   this    is   a  prcsectuion  for  another  end  drs- 
tinct    act    of   sexual    intercourse   from  wnat   the  prcsectxticn  v/^s 
based   UTDon   in  the  othex^c^se.      Ta::ing   in  view  of  the   .act    .he  State 

elected' be-fore  to    der^end   arjon  the  date  of  October  ZStn, 

and   in  viev/  of  the   fact   that   the  State  nov/  depends   upon  an   entirely 
differer.t    date,    the  objection   is    sustained."      In  various^  other  v/ays 
defendant    raised  the  question  of   former  acquittal,     and  the  point 
nov;  ^resented   for  decision   is,     was   the  plea  of   former  acquittal 
sustained?      As  the   rirosecutrix   v/as    under  the  age  of  consent,     it    is 
conceded  that   the  same  testimony  would   he-re  supported   either  charge, 
and  that    the  indictments    covered  the  same  periods   of  tim.e.      The 
verdict    of  acquittal    in  the  rape  case  v/as    necessarily,'-  a    finding 
that    defendant    had   not    had   intercourse  with  the  prosecutrix  at    any 
time   during   the  period   covered  by  the    i  nd  i  r\rr.ent  .      True,     rape   is 
not   a   cont  inuing' of  f  ense,    but    under  a  general    charge,     such  as   v/as 
made   in  this    case,    all   acts   of   illegal    commerce  v/ithin  the  period 
of  the  statute  of  lir.itations   might   be  shov-Ti;    and   in  such  cases   a 
general   verdict    of  acquittal    is   an  ac^iuittal    of   all.      St  at  e  v . 
Parish.    104  r.    c.    679    (10   S.    E.    Rep.    457);    pro-er  v.    State,     85    ./is. 
615    (55   if.    w'.    Rep.   1055;.   But    it    said  that,     as    the   3ttt  e    elected 
in  the   rape   case  to    rely   upon  one    late,     and    in  ihe   incest    case 
upon  another,    these   rules   do    not    a^oly,    and  there  was    no    former 
acquittal,     nor  was   the  defendant    in   jeopardy    in  the   rape  trial   for 
any  other^act    of  intercourse  than  the  one   relied   upon  by  the  State, 
to-wit,    the  one  occurring  on  October  26th.      This   is   a  virtual    con- 
cession that   the  doctrine  of   former  acquittal    applies,    but   that    it 
only  applies   when  the  State   relies   ut)on  the  same  and   identical 
transactions.     The   concession  is   manifestly   sound,    but   the  qualifi- 
cation  is    not,     unless   all    rules    with  refe-^ence  to    ieopardv   are  mis- 
appliea   or  misunderstood.      A   few  suggestions   will    disT50se' of  the 
_Gllacy   involved    in  this   contention.      Suiorose,     after  the   jury  had 
teen   imisaneled  and   sworn   in  the   rape  case,     and  before  the  State  had 
teen   compelled  to   make  an   election,    the  court    had   imp-or^erlv  d-:rect- 

We  'ent''^Mp/??/f'"r^!^*:    °''  ^'^'^   ^^""  ''■''y  °^-^^  ^c*    which  wo-ild 
thit    -S^Hi?l^    /^r^^-^*   *°    ^   discharge,     wc^oid   it   be  contended 
oSln^S    •      f^*^^""^    ^t^   """^   "'=^®"   ^"  jeopardy   as   to   ever-  act    or 
Sion  anotSei"??   '''''''^'  '"^'^  ?'"'^^^^  ^^^  1  ^^^itat  ions?      Could  the  state 
^hlthll^tl  '.Ji^^/V''?^"  '-^-^   ^^■^"^■^"  °f  another   indictment,     cover- 
made  no    ef2?t?or     tV/  * '-'"^'     -^"^cessfully   contend  that,  as      'it    had 
Jav  th^t    it   U?SnHp?   ''^'■'^^r'^^^°P^'^^^  ^^   ^^   ^-^y  Offense?    Could   it 
one  VS   Al  f]^J  fti'     '^  '"^-^^'^   ""P^'^  *°   ^^"^  ^^   election,  to    select 
another'-^      Marrfe.-v   "IZ^^rVi^^    °^  '"^^   """""^    indictment    ..as    for 

^?ii?^?tSS  ?^i1  Hr-^  --  ^har;^nihe 

trensac^i;:;^rrce;?:irianf  ^^i^.  ^%^l^tt  ^^^^   ^   ^^"^^" 

may  r^llvTTs   I'r^T'^'lfi  '^^^*    '''  ^'^'^'^^   ^^  this   kind  the  state 
y   P  ove  a.s   a  P...I,   o.    its    case   every  act    of   sexual    intercourse 

526  3 


Former   Jeopardy  ^2 

oetween  the  parties   within  tue  period  of  the  statute  °J  li^i^/^f^f^' 
and    ever^r  act    so    proved  v/ould   undoubtedly,     under  the   conceded   lac.s 
!n  thircate     hive   constituted  both  incest    and   rape        When  con- 
belled  t  ollect      the  State  undoubtedly   chose  tnat    act    v/nicn  it   had 
thp  most    evidence  to    sustain;    and  the  verdict    in  the  rape   case  was 
"u^ely  an  Ic4uittal    of   all    acts    which  v;o-uld   constitute   rape   cornmit- 
?ed   within  the  period   covered  by  the   indictment  .That    ir-   to    say, 
it    was.     in   effe?t.    a   finding  that    the  defendant    had  not    had   inter- 
course with  the  girl    at    any  time  within  the  period  of  t  ime  covered 
bv  the  two    indictments.      State  v.    Stone      75    Iowa,     215.      But    lOr  a 
statute  which  prohibits  the  cnarf'^mg  of  two    separate  o_fenses    m 
the  same   indictment,    the   crime  of   rape  may  be   charged    in  one  count 
of  an   indictment    and  the  crime  of   incest    in  another.   Porath  y. 
State  .  90    Wis.    527    (63  N.    W.    Rep.    1061,     48  Am.    St.   Rep.    954); 
Com.  V.    Parker.    146  Pa.    343   (23  Atl  .   Rer) .    32  3);    Com,  v.    Goodhue. 
2  Mete.   19  5;    Com,   v.    Squires.     97  Mass,    '59.    So   also,    may   for«ifi- 
cation  and   rape  be   joined.      Jackson  v.    Stat  e,     91    'JVis  .   253    (64  JT,    '.V. 
Rep.    838).   This  being  true,     it    follov/s,  we  tnink,    that    an  acquittal 
in  such  a   case   is   an  acquittal    of  both  offenses   during  the  period 
coverecd  by  the   indictment.     The  mere  fact   that    these  offenses 
cannot    nov/  be   joined    in  this   State  under  our  criminal   procedure 
does   not    change  the   rule  as  to   the  effect    of  an  acquittal.    In 
State  V .   Thomas.     5  3   Iowa.    214,     it    v/as   held  by  a   divided   court    that 
rape  and   incest    cannot   be  charged   in  the  same  indictment;    or, 
more  properly  speaking,    that    the  crimes    charged    in  that    particular 
case  could  not   be   joined.     The  soundness   of  the  argument    used   in 
that    opinion  was    challenged   in  State  y  .  .Hurd^    101    Iowa,     391,     and 
in  the  latter  case   it    is    expressly  held  that    incest    was   there   in- 
cluded  in  the   crime  of  rape,    and  that    upon  a  trial    for   incest 
proof  of  rape  upon  the  prosecutrix  might   be  given.   See  pages   402, 
403,  of  101    Iowa.      See  also    State  v  .   Kouhns,    1C5  Iov;a,  72C  . 

•In  the  absence  of  statute,     it    is   the  general,     if  not  the 
universal   rule  that   to   sustain  a  plea  of   former  acquittal    it   need 
not   be   shov;n  that   the  offenses   are  the  same.      The  test    sustained  by 
all   the  authorities    is   whether  or  not,     if   wliat    is   set    out    in  the 
second    indictment      had  been  proved  under  the  first,  there   co'old  have 
been  a  conviction,    '^en  there  could,    the  second   cannot   be  main- 
tained;   v/hen  there   could  not,  it   may  be.      Or,    putting   it    in  another 
way,     and   in  the  manner  in  which  it    is    usually  stated  the  test    is 
whether  the   first    indictment    -was   such  that    the  accused  might   la^v- 
f\aiy  have  been  convicted  under  it,    on  proof  of  the  same  facts   as 
those  by  which  the  second    is  to  be  sustained.   Stat  e  v  .    Stone,     75 
Iowa,  215;   V.   S.   y.    Hickerson,  17   Kow.    (U.    s.)    204    (15  L.    Ed.    Cl9); 
Dill   V.    People.     19    Colo .    469   936   ?ac .   Rec .    229,     41   Am.    St.   Rep. 
254 J;    mTsonv.    State.    24   Conn,    57;    Roberts  v.    State.    14   Ga.    8    (58 
Am.    Dec .    528  j  ;    Smit  h  v .    Stat  e.     85    Ind  .    55  5;    State  ^^^"Keo.gh.    13  La, 
Ann.    243;    Com,   v.    Robey.     12   Pick.    496;      Roccc   v.    State.     3?  Hiss . 
357;    State  v      Jesse";     St^  IT.    C.    98;    Price  v.    State.     19     ^Chio,     423; 
Parchman  v.    StateT~2  Tex.   Apr?.   228    (28  Am.   Rep.    4  35) ;    State  r. 
u  ^ f ^"^f;~     87    Iowa,     255.      In  State  v.    Hurd.     supra,     it    is   squarely 
held  that   the  same  testimony  mav  support   tne  cnarge  of   either 

526  3 


53 

Former   Jeopardy 

incest    or  rape;    and.  if  the   indictments   cover  the  ^^^J^'fJ^l^^S^^^ 
time,     it    is   ?lear   that    an  acc,uittal   of  °f ^,.^^1^^, f  g^^f  rV^'^"*"^ 
other.      In   State  v.    I^ickesell,     70    lov/a.     17d      it    is   held  t-a..t    a 
former   acquittal    of  the  cHi^e  of  larceny   is   a  bar  t°    J  P^J,^f  ^ 
tion  for   robbery   for  the  taking  of  the  ^^f ,    ^^^f^ :    ^^^^|-^ncauit. 
charges   are  not   the   same,    but,     as   said   m  tne  opinion,      ^ne  acquix 
tal  In  the   foimer   charge  then   is   a   Judicial   j^t  ermmat  ion  t^^f^^ 
was   not    guilty  of  the  larceny   cnarged   ^-f^^^^f  ,^f^fj-^f^'  ^hich  he 
the  same  property  that    is   describea    in  ^^^ -I^^,\':^f  J'':„^^^J, 'f^ent 
v;aE    convicted.      That    acquittrl    is   a  har   ^^.    ^^-J^'^^^^^J^Jj^'f^'^Xich 
for  the  larceny  of  the  property,    lut    lor  any  otner  offense  f^^J^^-'^ 
such  Ir^-cenv   is   an   essential    element."      In  Scott   v.    U-    Qy     '.^"-f^^^^ 
(Iowa)    142.  ^  it   was   held  that    an  acquittal    for  r.anslaugnt  er   is   a  bar 
tc   an   indictment    for  murder,    on  the  theory  that   the  acquittal   was 
a    judicial    determination  that   the  defendant    did   not    unlawfuJ.ly  taKe 
the  life  of  the  deceased,    and,     ccnsequentij/,  was    not    guilty  of  anj' 
offense  of  which  such  unlawful   killing  was   a   necesary   element.    In 
State  V.    Gleason,     56    Iowa,    2C  3,     it    v/as   held  that    a   conviction  for 
net  it    larceny  before  a    justice   is   a  bar  to   a   subsequent    prosecution 
en   indictment      for  larceny   from  the  person;   the   reason  given  being 
that,     if  defendant    had  been  acquitted  before  the   justice,    this 
v/c^old  have  been  a  bar  to   another  prosecution   for  stealing    from  the 
person,  because   if  he  was   not    guilty  of  larceny,     he   could   not   be  of 
stealing   from  the  person.      In  State  v .   lilurray,     55    Icwa,     530,     it    is 
held  that    a   conviction   for  petit    Tarceny   is   a  bar  to   a  prosecution 
for  grand   larceny  based   upon  the  same  facts.    In  State  v.    Copper, 
15  N.    J.    361    (25  Am.    Dec.^49C),     it    was   held  that    one   convicted  of 
arson  could  not    afterwards  be  tried   for  murder,     in  the  commission 
of  the  same  arson,    vmere  the  statute   imposed  the  penalties   of 
m.urder   for  such  arson.      In  State  v .   Lev/is,     9   IT.    C.    95    (11   Am.    Dec. 
741 ),     it    was   decided  that,     wnere  two    indictments    for  a   felonious 
taking  of  goods    v/ere   found   against    a  prisoner,     one   charging  him 
v/ith  burglar^'-  and  larceny  and  the  other  v/ith  robbery,     and   under  the 
first    indictment    he  was    convicted  of  larceny,  he  could   not   be  tried 
upon  the  second   indictm.ent .      See,  also,    Roberts  v.    State,     supra. 

but 

October  28th  and    in  the  other  upon  an  act    committed  on  November 
12th,    they  do   net    aprly,     and  are   not    cent  rol?.  ing.   This   prOT)Osition 
is   unsound,      Vlflien  the   jury  war    sworn   in  the      rs,t)e  case,  defendant 
was    in   jeopardy  as   to    every  act    of   intercourse   committed  by  him 
with  the  prosecutrix   during  the  period   covered  bv  the   indictment; 
and  upon  a  verdict    of   not   guilty  being   returned  the  State   co'old   not 
have   reindicted   and  tried   him  for  an  act    of   intercourse   committed 
at    some  time  within  the  period   covered  by  the   indictment,     for  v.-hich 
the  State  did   not    elect   to   prosecute.      This    is    fully   established 
by  the  authorities   already   cited.    If  thp  acts   of   intercourse  with 
the_^  prosecutrix   were   entirely  distinct    and    separate  offenses,    and 
could   not    have  been  proved   under  the  original    charge  of   rape,    there 
would  be  much   force   in  the  t)Csition  taken     bv  the  State.      B'Jt    in 
these  sexual    offenses    it    is    competent    for  the   State  to   prove  any 

5253 


54 

Former   Jeopardy 


a.d  all   acts   of  intercourse  between  the  Partxes   durxng  tne  t   ne 
covered  by  the   iudictxent    at    ^^a^t;/^^Ve  -^.^^^^^ense   4?  elligent- 
own  protection.     -^  l^Jf^l'^^l^:/':^:^.  tlill^^^    rely, 
ly.    may  require  the  State   oO   el  ec.upo^^^  required  all   the  testi- 

Rtate  rr,    Hurd,     supra.     _i?^t  .v,nen   e.e   .  lo.    i^    r  q  ^.^  ^^^    ^ 


^i^T^r^s-to   other  acts    remains    in  the  case,     ana   as   saxd  __  ^ 

V.    Harmison,     Fed.    Cas ,    No.   15,  2C8    {■:>  ^a;-^!  J- ^^'^  ly..   _,-,g  ^^^^      "but 
whether  the  defendant    has    already   ceen  tried   for   '^^^ ^^ff  ^J^at    de- 
'^hether  he  has  "been  put    in   jeopardy   ^^J  ^J^/^^!,  °  ;J,^^U^,-,^.se  de- 
fendant   was    in   jeorardy   as  to    every  act    \f  eexua      inte^c^a^se   D^ 
tween  hin  and  the  prosecutrix   covered   oy  tne   l^J^-^tmen.    .o      Tc^pe 
is  verv   c-iea-       The  defendant   may  waive  his   right   to   move   t.°T/" 
eieltSn  en  the  part    of  the  State,    and   if  he  dees   so     there   "S  no 
Sum    Of  the   rule  here  announced.      When  he  Joes   move,     and  tne   elec- 
tion is  made,    he   is   nevertheless    compelled  to   ^ J^^^f^/'^ft^^fi-  ^ J- 
ac-^-.   Tut    ^-r   e^ridence  hy  the  State.      In  many   cases  the   exec. .on  is 
said  to   rest    in  the  sound  discretion  of  the  trial   court,_    and  v;nen 
made  it    is    for  the  benefit   of  the  defendant   to  ^enable  nir  t c   pro- 
Tjerlv  meet    the  chare:e;    and,     as   said    m  tne  hura   Case,     supra^     There 
is   a  manifest    difference  bef.veen   cases    in  which  tne  evidence  as    uO 
other  offenses    is   properly  admitted    (as    in  this   case)    as   tearing 
upon  the  tjarticular  offense  and  where   it    is   not    aamissitie.  •    _  .n 
rape  and  other  like   cases   an   election  may  be   required,    but    aix   tne 
testimony  as   to   other  acts   of  sexual    intercourse   rerriains    m  the 
case,    having  -orobative   force,     and  the   effect    is   that    the  defendanx 
is    in  jeopardv  as  to    each.      The  State,     in   electing  to   Prosecute 
for  the  one.     in  legal    effect    waives   all   the  others,     save  that   tne 
ethers    remain  in   evidence  as   a  p?  rt   of  tna  State's    case.    St  aT._e  y ._ 
Small  ey.     5C   7t  .    753.   This    is    andcubtedly  the  rule  as  to    continuing 
offenses;    and  we  think   it    also   applies    v;here  the  offenses   are  cf 
the  aame  nature  or  species,     so   that    the  evidence  which  proves  the 
one  would   also   r>rove  the  other.    Holt   v.    3tate,  36   Ga.   187.    In 
Commonwealth  v.\^.rner     149  la.    35    (24  /tl .    Rep.    83),     it    is    express- 
ly held  tnat    one  who    has   been  convicted  of  fornication  and  bastardy 
cannot   thereafter  be  tried    for  rape   for  the  same  act.      See,     also, 
lynch  V.    Com.      18   Ky ,   145    ( 35   S .    W.   Rep.    264),     arA  2r;j^nt  _v_^_Stat^ 
lArk.j    81    S.    a.   Rep.   234, 

But,     7/hatever  the   rule  at    common  lav;  and    in  oth<^r   jurisdic- 
tions,   the  m.atter   is    settled   for  this   State  by  stst'jte.    Code, 
section  540  5,  provides   that    a  verdict    of  not    guilty   import-_s   an 
acquittal   on   every  material   aliegatlon   m  th^   indictftiVrif:      In  ^ he 
rapt*' ciiarge  time  was   not    ri'S-t  erial,     and  the  State   could^have  showri, 
as    it   did,     intercourse  betv/een  the  parties;   at    rny  time  within 
eighteen  months   prior  to   the  finding   of  the  indictment.   The   effect 
of  the  allegation  in  the   indictment    was   that    -^^-ithin    eighteen  months 
prior  to  the  time  of  the   finding  thereof  defendant    hpd  had    inter- 
course with  the  prosecutrix.     The  verdict    in  the  rape  case  acquitted 
him  of  that    charge.      Unless   he  did   have   intercourse   with  her,    he 
was   not   guilty  of   incest.      The  two   indictments    cover  the  same  period 
cf  time,    and,    while  the  offenses    charred  are   not    necessarily  the 
sani^    they  are  cf  the  sam.e  nature  or  species    -  that    is  tc    say  are 

5263 


Former   Jeopardy  55 

both  sexual    offenses    -   and    evidence   which  would  prove  the  one  wo^jld 
als-   ■rv£i^r£:..:u\e  other.      Identity  of  the  transactions    re..ied   upon   is 
not    a  t.roper  test,     for  a    sin-le  act    or  transaction  may   contain 
elements    each  of  which  sa;e.  c-irr.es    under  different    statut^is;    and,     as 
we  have   alreadv  seen.  TcTeHtity  of  oferge   is   net    the  te^i^It    is_ 
enocigh  if  an  acquittal    of  one  shows  that   the  defendant    cculd   nOo 

ha^rt:KiMZEmXl7T~'y-^~^rk^^-^^i'^^:^£X^ I-IiMtt v_Ls.  C-mins.x  JLaw^..  4j2-456. 

In  State  v.    Waterman.     37    lo-wa,     255.     in  construing  the   statute  al- 
realy~ref erred  to,     v/e  held  that    an  acquittal    upon  an   inaictnent 
for  ccBtructing  a  highv/ay   was   a  bar  to   another   indictment    which 
covered   a   part    of  the  t  iiiie   included   v/ithin  the   first    indictment. 
This   was    net   because  the  offenses    were   each  continuing    in  character, 
but   because  there  v/ere   common  elements    in  the  tv.o    charges    covering 
a   part    of  the  same  T^eriod  of  time,     to-wit,     first,    the   existence  of 
a   highway,     and   second,     its   obstruction  by  the  defendant.    Applying 
the  test    heretofore  given  as  to   whether  the   evidence  to    s  Cq:>pc  rt  _  t  he 
second    indictment    would   have   justified   a   conviction  under  the   first 
we   found  that,     as   the  time   in  the  tv^c    indictments   overlapped,    the    n 
same  evidence  might    have  supr>orted   either  c,har^.    and  that,     as  the 
highv/ay  was   the  same    in  each   case,  and  the   evT^nce  as   to   the  ob- 
struction rrie-ht    have  been  the  same  for  a  part    of  the  r>eriod   ccverea 
by  the  two    indictments,  an  acquittal    on  the  former   indictment    v/as   a 
bar  to   a  prosecution  under  the  latter.      Further,  it    was    said  that 
under  the     provisions   of  the  statute  to    which  v/e  have   referred  the 
acquit-cal    under  the   first    indictment    v/as   a   finding  that   there  was 
no        highv/ay  which  the  defendant    could  obstruct;   that   this    finding 
was   conclusive,    and   could  not   be  again   inquired    into    in  the   same 
kind  of  a   criminal   action.      That    the   crimes   of   incest    and    rape  are 
of  the  same  general    nature   -  that    is   to    say.     are   sexual    crimes    -  has 
already  been   shown,     and.  if  there   were   any  doubt    about   this   proposi- 
tion,    it    is    now  settled  by  the  Hurd   Case,     supra.    In  both  rape  and 
incest   the  criminal    act    is   t h e  u rH g^>vf 'jl,    carnal    kjQCLwl edge  of  a 
woman.      ;iS   the  offenses    ere  of  tTTe   s^^me  nature  snd  species,  the   rule 
announced   in  State  v.    Waterman,     supra,    must    govern,     and  unless   we 
overrule  that    case  we  must    rearers e  this  . 

Believing  that   that    case  v/as    correctly  decided,     and  that    under 
well-knov/n  and   familiar  rules  the  doctririe  of  autrefois    acquit 
applies,     v/e  must    hold  that    the  trial    court    was    in   error  in   its 
rulings    with  reference  to  the  rlea   of  former  acquittal.  The   judgment 
must   therefore  be,     and    it    is    reversed . 

5263 


f 


Part    II  56 

Proceedings  preliminary  to   Trial.  , 

Chapt  er    IV . 

Steps  by  the  State  Prior  to    Indictment. 

Section  1 . 

Introduct  ion. 

No   man   can  be  tried   for  crime  during  his    absence,     except    that 
the  Code  authorizes    a   defendant   to  be    "nresent"   by   counsel   of  the 
trial   as    f"r_p_jilademPnn^r    {'^'^^'j         His   presence  or  representation 
at   tfie  tt-ial    is    necessary    even   if,     as    is   usually  the  ctse,    tnis   is 
obtained   without    his    consent.      But    his   presence   is   not    essential 
to   the   finding  of  an   indictment    against    him.      The  grand   jury  oan 
decide  whether  he  shall   be     tried   for  crime  although  he   is    still  at 
large,    but    in  actual    practice   it    is   not   usually   customary  to    v/ait 
for  the   indictment   before  making  the  arrest,     lest   the  accused   dis- 
appear  in  the  meantime.      Under  certain  circujnstances   this    arrest 
may  be  made   v/it'hout    a   warrant.      When  such  circumstances    do    not 
exist    a   warrant    is    necessary  for  the  arrest,     and   even  where  they 
do    exist    a    warrant    is   advisable  if  to    obtain  it    will   net    increase 
the  probability  that    the  accused  will    escape. 

From  this    it    is   apparent   that    the  order   in   which  these   steps 
are  talcen   is    not    always   the  same.      SometiriieH   the  defendant    is    indic- 
ted,   after  which  there  will   be   issued   a  tench  warrant    upon  v/hich  he 
is   arrested.      At   other  t  inies   he  will   be  arrested   without    a   v/arrant 
and  subsequently    indicted.      £ut    we  are  apt    to    feel   that    the  normal 
order   for  these   events    is  that   the  warrant    should  precede  the   arrest 
and  the,_indictment_should   come_aft  ervyai;ds .      It    is    in  tHis   order  that 
they  wilT^e  TTl?T'e~^hsTd%YeaT"    The  discussion  so    far  has   had   refer- 
ence to   order  only  and  has    not    disclosed  all    the   steps   which  will 
be  taken.      ^^or   example,  if  we  assume  that   the  arrest    precedes  the 
indictment,     and    is   made   under  a   warrant    therefor,    the  full    proce- 
dure will   be  as    follov;s:    First,     a   complaint    v/ill   be   filed;    second, 
the  magistrate  v;ill    is^ue  a  warrant,     for  the  arrest    of  the  person 
accused;    third,     some  peace  officer  will    ar-^estthe  accused  by  virtue 
of  this   warrant;    fourth,    the  arrested   person   will   then  be  taken 
before  the  magistrate   for  preliminary   examination;    fifth,    the  re- 
sult  of  the  preliminary   examination  v/ill   be  that   the  defendant    is 
either  discharged,     admitted  to  bail,  or  committed  to    jail    -    if   com- 
mitted to    jail   the  magistrate  makes   out    a   warrant    of  commitment 
which  he  delivers   with  the  defendant    to  the  officer;    sixth,  the 
county  attorney  then  files^an   information  against    the  defendant    or 
draws   an   indictment   to   ta^  before   the  grand    jury  v.-hich  may   either 
"find"   or   "ignore"    it.      If  the  grand   jury   "finds"   the  indictment 
against   the  defendant    and   he  pleads    not    sruilty  thereto,    he  will 
subsequently  be  tried  by  a  petit    jury. 

Misdemeanors    "in  which  the  punishment    prescribed  by  law  does 
not    exceed   a   fine  of  one  hundred   dollars   or    imprisonment    thirty 

526  3 


Proceedin&s   Preliminf/.'-y  to  Trial.  57 

days"    (5575)    are   nonindictable  offenses   f-.nd  r.'.ust    ce  tried  before  a 
justice  of  the  peace  of  t'.ie  county   in  v/hich  the  offense   .vas    committ< 
ed.      The  procedure   is    ^uit  e   similar  to   thot    already  outlined   up  to 
the  point    of  the  preliminary   examination.      Instead  cf     tnis   pre- 
liminary examination  the  justice  tries  the  defendant    and  the   judg- 
ment  of  conviction  or  acquittal,     entered   as    a   result    of  this  trial, 
ends   the  proceedings   unless   an  appeal    is  taken. 


Before   considering  the   separate   steps   tP'ken  "by  the 
;hould  mention  the  various   modes   of  accusation.      Cur  sys 
sermits   no   man  to   le  placed   on  trial    for   crime  unH.  ess   h« 


St  at  e  Y/e 
/stem  cf  lav; 
permits   no   man  to   le  placed   on  trial    for   crime  unD.  ess   he  has  been 
formally  charged   with  the  ocmmiss1.cn  of  a  public  offense.  This 
is  one  cf  the  fundamiental    concept :'.ons   of  the  common  lav/.     This 
formal    accusation  must    set    forth  the  particular  offense  v;ith  which 
the  person   is   charged,    and  -nay  ta^ce  the   form  of    (1)    a   complaint, 
(2)    an   indictment,     (3)    an   information  or    (4)   the  finding  of  a 
coroner's    jury. 

At    common  law  one   formally  accused  of  homicide  by  the   finding 
of  the  coroner's    jury   could  be  arraigned   and  tried  thereon,     so 
thnt    it    had  the   force  and    ef-"ect    of  an    indictment.      But    in  this 
state  an  indictm.ent   or  information  m.ust    follov/  before  the  accused 
can  be  placed   on  trial    (513  to    533)    so   thfr.t    it   has   rather  the 
character  cf  a   comiolaint   than  an  indictment. 


Section   II. 

The      Ccrapiaint  . 

A  complaint    is   a   v/ritten  accusation  of   a  public  offense, 
sworn  to   and   filed.^bv   a  -grivate   individual,    before  a  magistrate. 


St  at  e  V  .   St  o  ut  . 

Supreme   Court    of    Iowa,     1887.      71    lov/a    343,     32   IT.    V/.    37S. 

The  defendant,     having  been   convicted   of  adultery,     appealed, 

Seevers,     J.    -     The  indictment,    among  other  things,     states 
or  charges  txTat   thi3   prosecution   is   commenced  on  the  cor.pl a int    "of 
the  wife  of  the  defendant."      It    is   provided  by  statute  that    "no 
prosecution  for  adultery   can  be  commerced  but"^  en  the   com.Dlaint   of 
the  husband  or  wife,  "    (Code,     0  4CC8,  )    and  the  only  question  -.76 
are   called  on  to    determ.ine   is   whether  this   prosecution   is    so 
commenced. 

In  Bush  V.    '.VorlnTian.       64    Iowa,     2C5,     it    was   said  that   the  statute 

5263 


The   Complaint  .  52 

is?   plain,     easily   understood,  and  that    it    foi-hids   prosecutions    for 
adultery   except    v/hen  the  same  are   conmenced  on  the   complaint    of 
the  husband  or  v/ife. 

In  State  v.    Henke,     58    Iowa,     457,     it    v/rs   held  that    an  aver- 
•ment    in  the   indictment   that   the  prosecution  was    ccmmenced   on  the 
compiaint    of  the  wife  was    insufficient,     and  that    the   fact   that   the 
prosecution  v/as    so    commenced   was   mat  e  rial,  and  must   be   established 
on  the  trial , 

But    in  State  v.    Donovan,     61    lov/a,     278,     it    was   held  that    such 
fact    could  be   established  'cy  a  preponderance  of  the   evidence.    In 
the  same  case  the  court    instructed  the  jury  that    if  the  defendant's 
wife  ^'appeared  before  the  grand   .jury   in   response  to   a   subpoena, 
and  testified    in  the   case,    but    not    intending  to   prefer  the  charge 
of  adulterj--  against    the  defendant;   but    gave  her  testimony  supposing 
she  was    required  to    do    so,    this   would   not   be  a   complaint    of  her 
against    her  husband,     within  the  meaning  of  the  law."    It    was   said 
that   this   instruction  announces   a   correct    rule. 

In  the  present    case,    the   court    instructed  the   jury  that,     if 
the   wife  of  the  defendant    v/ent    before  the  grand    jury  as   a   witness, 
e-xen  though  she  did   so    in  obedience  to   a  subpoena,     and  testified 
as   a  v/itness,    this   would  be  sufficient   to   sustain  the  averment   in 
the   indictment,       in  the  absence  of   evidence  to  the   contrary,    that 
-the  prosecution  was    commenced   on  the   complaint   of  the  defendant's 
v/ife.      It    seems  to    us  that   this   instruction  conflicts    with  the 
instruction  which  was   approved    in  State  v.   Jo  nova  n.     above   cited,, 
iesides   this,    a   complaint    we   understand  to   be  a   formal    allegation 
or  charge,    preferred  by  some  one  against    another,    to   an  appropriate 
court    or  officer.      Such  a   complaint,    the  statute  requires,    must    be 
prefe-rred  by  husband  or  wife.      The  indictment    is   not    necessarily   so 
preferred.        Mrs.    Stout    no   doubt   testified  to    certain   facts  t'eT'ore 
the  grand   jury,     and   it    will   be   conceded   that    she   could   not    have  been 
compelled  to  testify,    but    still    she  may   not   have  believed  h'5r  hus- 
band guilty,    and   did   not    intend  to   prefer  a    complaint    against    him. 
The  mere   fact   that    she  testified  as   a   witness    is   materially  differ- 
ent   from  preferring   a   complaint  .      She   in  fact    made  nc^j^ioiaplaint. 
but    simply  responded  to   such  questions    as    v;ere  asked   her,       tie  think 
the   instruction  above   referred   to    is    erroneous,     and  that   there   is 
no    sufficient    evidence  showing  that   Mrs.   Stout   made  a   complaint    as 
provided  by  statute. 

Reversed. 


Beet  ion    3. 
The   Warrant  . 

The  warrant,    which   is    issued  by  the  m.agistrate  upon   complaint 
filed,     is   directed   "to   any  peace  officer  of  the  state"    (5183  and 

526  3 


The   Warrant  ^® 

5134),    and  may  be  served    in  any   county   in  ^-^Vl^^  ^..i^;- h'-he^ 
chief  problem  in  connection  with  the  warrant    has    .o   dc_  v/.un   .he 
circiarStances    under  v;hich  it    is    required;    and   conr-erse.y.    tnose 
under  which  no   v/arrant    is   necessary   for  the  arresu  . 


Yount   V.    Carney. 

Supreme    Court    of    lov/a,     1394.      91    lo-^a   559.50   IT.    'A^    114. 

The  plaintiff,     claiming  to   have  teen  wrongfully  arrest  ed  by 
the  city  marshal,    brought    suit   on  ohe  official   bond  oi   rnat    o.fi^e.  . 
When  the   evidence  was    in.  the  defendants    filed  a  ^'^^ -°^_°  f^J- ;^^"    . 
diet,     which  was    sustained  and  judgment    was    entered  acco.axng.y.  Tne 
plaintiff  appealed. 

Given.     J.    

I^     The  single   contention   is   whether  the  court    erred    in  direct- 
ing a  vern^ct    for  the  defendants.   There   is   no    question  out    tnat    «ne 
defendant    Carney,     in  his    capacity  as    ci^y  marshal.     <^i'i.  jn  tiTe  ev  en- 
-'ng  of  the   fourteenth,     and  a^ain  on  the   evening  of  tne  fifteenth 
of  December,     1890,     in  the   city  of  Oskaloosa,     without    a  warrant,     end 
without   the  plaintiff  having   committed,    or  attempted  to      commit,     rmy 
public   offense   in  hi;^   presence,    arrest    and  detain  the  plaintiff   in 
custody   for  about   two   hours   at    each  arrest.      If  these  arrests   were 
authorized   and  lawful,    or  if  the  plaintiff  suffered   no   actual    damage 
thereby,    the  action  of  the   couit    is    warranted;    otherwise   it    is   not. 
Section  42CC    of  the   Code  -orovides  that    "a   peace  officer  without    a 

warrant   may  make  an  arrest    (2)    whei'C  a   public   offense  has    in 

fact   been  committed,    and   he  has    reasonable  ground"  tor  belre^Hrft^ 
that    a  person  to  be  arrested   has    committed    it." 

Appellant    contends  that,     under  the   evidence,    the  question 
whether  defendant    Carney/-  had   reasonable  ground   for  believing  that 
the  plaintiff  had   committed   a  public   offense  should  have  been  sub- 
matted  to  the   jury;    v/hile  appellees    contend  that   the  e^/idence  sho'.vs 
without    conflict    that    he  had   reasonable  ground   for  so  believing.    In 
viev/  of  the   conclusion  we  reach,     it    is    not    proper  thao    v.'e   should 
discuss   the   evidence  at    length.      '^e  will   only   notice   in  a   general 
v.ay  the  authority  uncer   v/hich  the  defendant    Carney  m.ade  these 
arrests.      He  states   as   his   authority  for  making  the  first    arrest 
"that    ZLi   Hawkins   had  a  telephone  from  .%ltia   or  Eddyville,    t:iat   he 
had   read  to    hir.;     stating  that   a  horse  was    stolen  at    Albia,     and  tht.t 
two   men  had   passed  through  Eddyville  that    afternoon  v/ith  two   horses 
and  buggies   or  tuckbcards,     and  that    one  of  the  horses    resemblied 
the  horse  that    was   stolen."     Mr.    Hav/ki-^.s  testified  that   the  parties 
sending  the  message   requested  him  to    v.'etch  the  men,    or  get    some  one 
to   hold  them  until    they  got    there,     and  that    he  so   told   Deput3'- 
Karshal   Push,     and  that    Eush  v/ent    and   got    Carney.   Plaintiff   and  one 
Jackson  arrived    in  Cskaloosa  on  the   evening  of  the   fourteenth  from. 
Eddyville,     plaintiff  driving  a  ho-^se  to    a  cart,     and   Jackson  driving 

52  5  3 


The   Warrant  .  60 

driving  a  mare  to    a  buckboard.      The   first    v/as   msde   immediately 
nfter  their  arrivsl,     and  both  yount    and    Jackson  detained    in  cus- 
tody  until   the  iDarties   arri-7ed   frona  Eddyville,    and   declared  that 
neither  of  the  horses   v;as   the  one  thet    h-ad  been  stolen.    It    is   not 
stated  by  any  of  the  witnesses   that   the   request   to   Hawkins  to    de- 
tain the  iv.en  v/as    communicated  to   Carney,    but    such  was   probably 
the  fact./  Carney    examined   the  mare  before  making  the  first    arrest, 
and   says:  VI  though:    she  was    not   the  animol   that    was   wanted.      I 
did   not   think  they  v/ei-e  the  thieves."! 

ether  circumstaices   anpea'-   in  the-   e^ridence  proper  to  be 
considered   in  determining^   v/hether  defendant    Carney  had    reasonable 
grounds    f o r  t el i ev i n.?;  that    the  -olaintiff  had   committed   a  public 
offense,    but.    v/e  have^stated   sufficient   to   shov/that   the  question 
v/hether  he  h^d    reasonable  ground  for  sc  believing   when  he  made  the 
first    arrest    shouldhave  been  s-jtmitted  to  the  jury.    ^The  authority 
for  making  the  S'occnd"  arrest    was  this:    C   M-    Forest,  sheriff  of 
Monroe  county,     who,     it    is   claimed,    held   a  v/arrant    fcr  the  arrest    of 
men  for  Lors'e  stealing,    having  heard  of  the  arrest    and   release  of 
the  plaintiff   and   o^ckson   in  tho  fourt^eenth,     comsiunicat  ed   with  de- 
fendant   Carney  by  telephone  on  the  fifteenth.      Forest    states  their 
communication"  as"^  ft)i;.ais :    "I   called   for  the  city  marshal,     and   in- 
quired  for  these  parties,     if  he  had  them  yet,    and  he  said,     »lIo.'   * 
I   asked  him  v/hat    he  knev/  about   their  d eel ar^it  ions,  -   v/hether  he 
thought   them  to  be  true  or  not,     I  think   I   said  to   him  i  tlioughthe 
could  search  them  and   satisfy  himself.      He  wanted  to   know   if  we 
could   not    give  him  some  better  description  of  them  than  we  had.    He 
said  he  had  turned   his?   parties   loose,     and  that    they  had  gone   into 
the  country,    but   he  v/as   looking   for  them  back.      He  said,     if  they 
came  back,  '  he  would  satisfy  himself.      He  did     sc   and   reported  to 
me."      Carne3/-  states    it    as    follov/s:    "IKonday   e^rening,    the  sheriff  at 
Albia   called   me  ur   at   the  telershcne,    qnd  asked  me  why   I  didn't 
arrest    those   fellov/s   and   sea^roXthein..      I  tcld  him  I  didinot   think 
they  were  the  men  th-at    were_\vgrit  ed  .    I   said  thesi  men  have  been  here 
since  Sunday,     and,   ,if  they  were  horse  thieves,  T  don't   think  they 
v/ould   remain  quite  so   long.      He  said,     »you  go   on  and  arrest    them 
and  search  the-..»"    He   furi:her  states    that,     when  he  arrested  the  men 
the  last   time,     he  v/os    e  nt  i  rely  s  at  i,  s  f  i  ed    in  h  rs  own  mind  that   the-.- 
were  not    the  men  who    had  stolen  the  horse.      It    v/ill  be  observed 
that    Carney  testifies   that    Forest    said,     "You  go   on  and  arrest   them 
and  search  theFx,"    while  Forest    does    net   state  th^t    he  gave   such  an 
order:   thus   presenting  a  material    conflict    in  the  evidence.   The 
question  whether  defendant    Carne3-  had   r^^Ts^TiabTe  g rerun i   for  believ- 
i-ng  that   the  plaintiff  had   committed  a   -oublic   offense  v/hen  he  made 
the  second  arrest    should  have  been  submitted  to  the  jury. 


Rev  ers  ed  . 


*   I  asked  him  if  he  knew  him,  and  he  said  he  did   not,  but   that   they 
claimed  that    thej'  were   fruit-tree  agents. 

5255 


The   Vferrant  51 

St^te  V  .   Phillips  i 

Supreme   Court    of    Iowa,     19C2.      118    Iowa   660,     92   !T.    W-    876. 

Prom  a   conviction  cf  murder,     with  death  penalty,    the  defendants 
appealed  . 

WeaveT"      J.    -  Albert      City   is   an   incoroorat  ed  town  situated 
in  the   eastern  part    of  Buena  Vista   county,     Iowa.      Between  two   and 
three  o'clock   in  the  afternoon  of  the  16th  day  cf   November,    1901, 
one  Gilliuir,    a  druggist    doing  business    in  said  town,     received   a 
message  by  telephone   from  some  person  whose   identity   is   not    dis- 
closed  in  the   record,    but    supposed  to   have  been  speaking   from  the 
town  of  Sio'jx  RaT^ids,    to   the  effect   that    on  the  night   previous   a 
bank  at    the  town^of   Greenvr.lle,     in  Clay  county,     had   oeen  burglar- 
ized    and  that   three  T^ersons    su5T)ected  to   have  been  connected   v/iti. 
that' offense  had  been  seen  moving   in  the  direction  o:    AlberL,    Ci-.y. 
GiUiuir:  soon  met    one  Iodine,    a  drayman,     v/ho    was   also  marshal   of 
the  town      ^a^'-e  him  the  substance  of  the  message  ne  clamed  to   nave 
received!    and  told  him  to   look  out    for  and   arrest   the  tnree  men, 
describing  them  as  two    white  men  and  a  mulatto,  or  two   white  men  and 
a  negro;    the   exact    phrase   emtloyed  being   in  some  doubt.   Later  m 
the  afternoon,    Lodine   reported  to   Gillium  the  presence  of  three 
men     whom  he  believ'-ed  to    be  the  persons   wanted,     in  the  waiting   room 
of  the  railroad   station  a  block  or  two   distant.      Gilliur^     there- 
upon made  an   errand  to   the  statioi^,  saw  the  men.  and,     coming  back  to 
his   store^    told  Lodine  he  believed   them  to  be  the  parties   wnose 
arrest   was   desired.      A  party  was  then  organized  to    effect   the  cap- 
tu-re     consisting  of  Lodine,     Gillium,  John  Sundblad,    M.H.    Conlin, 
i^.   Gulbrenson,     Dr.    Xnee,    Mr.    Shob,     and  others.      Lodine  v/as   arraea 
with  a   repeating   rifle,     Sundblad   with  a   repeating   shotgun,     and 
Gillium  and   Gulbranson  with  revolvers.    Whether  others   carried 
weapons,     and,     if  so,    the   character  of  them  is   not    clear.   Proceed- 
ing" to  the  station,    the  m.arshal   and   his   party   crowded  through  the 
doer  of  the  v/aiting   room   in  a  bod;'-  as   nearly  as    possible,     with 
weapons    in  hand   ready   for   instant    use.      As   they   entered  they  ad- 
vanced  in  the  direction  of  the  suspected  men,     -  being  the  appellants, 
and  one  Polan,     who   v/as    killed   later   in  the  fray,     -   the  marshall 
calling  out,  "Hands   up.'  Hands   i*pl"  Some  of  the  witnesses  also  s^  he  ad«J-ed 
to   this   command  the  words,     "V/e  want   you."      Defendants   and  Dolan 
immediately  drev/  revolvers,    and    numerous    shots   \vere   exchanged, 
though  the  testimony  tends  to   shov/  that    one  of  the  defendants   or 
t   to    discharge  his   weapon.     The  marshal   and   his 


tervals   defendants   and   Dolan  came  to  the  door  and   fired  at    the 
posse.      Cne  cf  the  shots    so    fired   it    is   alleged    inflicted   upon 
Sundblad   a    .vound  of  which  he  died   a   day  or  two   later.    Finally  the 
besieged  party   emerged    from  the  station,     and  sought   to    escape   into 
the  country.      In  this   m.ovement   Dolan  received   a   fatal    shot    from  one 
one  the  posse.   The  defendants   continued  the   retreat,     closely'-   fnllowei 

5263 


The    ;^/arrant  ^2 

tv  their  TJursuers,     and  after   a   running   fif^ht   of  several   rail  es    -/.'ere 
captured."    The   iiidictnent  in  this    case   v;as    returnea   joveuocr  ^2,  19Gx, 
'■nd  the  trial    was    had   five   clays   later. 


XT.   The  legality  of  the  arrest   or  attempted   arrest    oy  the 
P^rshal    and  his   t^osse   is    elaoorptely  argued  by   counsel,  and  was    _ 
the  suVject    of  several   par?graioht:   of  the  court's   charge  to  tne  jur-/ 
The  theory  of  the  arj^ellants    is,     first,  that    tne  rr.ars-ial,    -laving 
nc    v/ar-^-ant.     wes    without    anv  j?utho-ity  tc   make   the  arrest;    and, 
second,    that    even   if  the  authority   exist  e^^.    it    v/as    exercised   m  an 
unlav/ful   manner,    and  thereby  provoked  the  fight    in  v/hlch     Sundtlad 
v/rs   killed.      A  jvmKM />   n-r-fi  rpt-"may  make  ^^i^arrest    v/ithcut    v/arrant 
v/^enever  a    -nuyiij:   o  ff  eng.£— hag- p  oQn   co?rL".it^~cd, — ee^e— ixe— bps    ro.?,s-aa.gtle 
g  ro  i^dfoj;^  Lelieving  t  hat  jtjie- pors-on  tc    be  arr'^'g-^  ed  has    -:orj7iit-tjed 
it  .      Clode,     secTTorr  5196  .      A  ^privat  e_jiit  izen  may   gxercise  lik€ 
ailthority  when  a    felon;-  has  ^f  eejx'co^rTlITlitt  edi      Codij     section   5T97, 
T^fe   -iuyptl'on  v/het n er7-g~f  el 0 ny  ITad  been  "^cornnitt  ed   and  v/hether  Lodine 
had   reasonable  grcum  to   believe  the  defendants   to   be  the  guilty 
parties    wap    for  the   jury.    vVe  think   it    v/as   sufficiently   clear  that    a 
felony  had  been  corrvmittisd  'by  some  one.   The  defendants'    complicity 
in  that    crime   is   not    open  tc   bout  .   The  marshal,     upon  a    somev/hat 
uncertain  and    fugitive   rumor  of  such  c"fense,     had   his   suspicion 
directed  to   the  men   in  the  waiting   rcoir.  of  the   station,     and  under- 
took their  arrest.      Had    it    proved  that    no    crime   v/as    in  fact    commit- 
ted,    or  that    the  defendants   v.ere  v/holly   innocent   thereof,  it    would 
doubtless   have  been  very  difficult    for  hi:-.i  to    defend  an  action  for 
damages    for  v/rongful    arrest.      But    so    long  as   the  r^omcred  offense 
was    in  fact    committed,     and  the  parties   n-r-i-est  e(j__wgr-g_  ^  ^^    i^a^t    guilty 
thereof,    the  truth,     when  ascertained,  should  be     held  sufxicieiit 
Justification  of  the  act    of  the  officer.    In  other    „ords,     if  an 
officer  makes   an  arrest    upon  insufficient    info  mat  ion  he  acts   at 
his   peril,     t:,nd-   assumes   the   risk  of  being   held   in  damages   to   an 
innocent   person  thus    injured;    but    if  a   f  elon;;/_hag^  been  ccmr;itt  ed, 
a.nd  the  off  leer  s_^sen^e_tjie_j;uiltylp  arty    v/iol^t7uni?ue~vrolence, 
he  does   no    v.Tong.      In   each  case  the  information  upon  which  he 

acted   is    imi>«ir?rial  .    It    would  be  an  anomalous   prot)Osition  to   hold 
an  officer  chargeable  v/lth  v/rong   In  arresting  the^  right   man; 
assuming,    of   course,    that   the  arrest   be  made   in  a  r)roper  and   law- 
ful  manner. 

The  manner   ir   which  the  marshal   and   his   assistants    undertook 
tc   seize  tne  defendants   and   Lolan  iDresents   a   less   clear  question. 
Tne   statute  provides    (Code,     section   5199)   that    a  -oe-scn  r^-^kin-  an 
arrest    must    inform  the  person  to-be  arrested   o^  the   intention^tc 
^Sstodv        -o      /.'-'^-^  ""^''i^^  thereof-,     and   requi-e  him  to    submit   to 
rT-rZ^^,'^    ■      P^~*ic'J^^^^   '0^3^'  Of  wo-ds    is   prescribed,    but   the  in- 
AlTnY^^  to   ^V-.-^"^^-  *°   *^'^  P^^^°"  accused,     and' o.>r,ort unity 
lell^n^lll.l^lT'' ^'^^  anorderly  snd   r^eaceable  manner,'    unless    good 
reasons   appear   for  the  omission  of  such  duty.    It    is   doubtless  true 

5363 


The   ■,Vrirra":t  63 

thst    under  seme  circanstances,    as    where  t'.ie  accused  person   is    flee- 
ing  from  the  officer,    or   is   making  active  resistance,    these   for- 
malities  need   not    ce  strictly  observed.     That    the  rr.orshal 's   party 
acted   in  the  highest    good   faith  as    citizens,     desiring  to  vindicate 
the  lav/,     cannot   be   c^uestioned;    a;:d   if  the  defendants   knew,  or  as 
reasonable  men  should   have  kno-A-n,    that    nothing  but   their  arrest    'kves 
sought,     and  no   bodily  harm  was    intended,    then  thej--   coiild   net    justify 
the  use  of  deadly  weapons    in  resistance,     even  though  the  arrest    wa^ 
unlawful.      Gn  the  other  hand,     if  the  posse,     even  though  acting   in 
good   faith  and   with  no    intention  of  violating  the  law,    suddenly 
advanced   upon  the  accused  with  leaded  guns,     presented   in  a  threat- 
ening manner,    therebv   inrressing  the  latter,     as    reasonable  rcen, 
with  the  belief  that"  they  v/ere  about   to    suffer  great   bodily  harm, 
or  be  placed  at    the  mercy  of  an  aqgr;/  mob,    then  they  had   the   right 
to   resist,     and   emr)loy   such  force  as    .vas    reasonably   adequate  to   de- 
fend themselves   against    the  attack,     without    regard  to  their  guilt 
of  the   ci:arge  upon  which  their  arrest    was   sought  .      The  language, 
"Hands    up  I    Hands    up'"   or  "Hands   up!    ¥e  want   you!"    eniT^hasized 
with  rifles,     shotguns,     and   -"evol-'ers,    may,     of   course,  be     used   with 
the  idea  that    the  party  thus   addressed   is    required  to   subject   to 
arrest,  but    it    must   be  admitted  that   to   the  average  mind    it    ordin- 
arily  conveys   a  much  more   uncomfortable   suggestion. 

The  defendants,     even  t  ho  ugh  cha  rg  ed  with  burglary,  were   en- 
titled tc   the  protection  o^  the  law  and  a  trial    in  due   course  of 
crim.inal   procedure,    and   if   expc^ed,    or  if  as    reasonable  me:\     in  vie', 
of  the  display  of   force  against   them,    they  believed  themselves    ex- 
posed, to   personal   violence,     neither  the   fact    of  their  guilt,      if 
guilty,     nor  of  the  honesty  of  purpose  of  the  marshal   ^nd  his   partv, 
would   deprive  them  of  their   right   to    resist.    Such  rightful    resis-' 
tance   is,     of  course,     proportioned  to  the  danger  tc  be  avoided,     and 
if   in  the  heat    of   combat   thus   occasioned   it    is   carried  beyond  that 
limit,  and   death   is   thereby   caused,    the  crime  will  be  murder   in  the 
second   degree  or  manslauight  er,     according  as   malice  mav  or  m.av   not 
be   found  to   characterise  the  wrongful   act.      Even  a  legal   arrest 
whether  with  or  without    warrant,    may  be  attemDted   i/:  such  a  violent, 
and  menacing  manner  tliat,     if  death  result    to   the  officer   in  the  heat 
0.    a^strug-le  thus    excited,    the  killing   will    not    be  m.urder  in  the 
tirso    degree.      As   bearing   upo:.  the  several   points   here   suggested, 
see  Rex,   v  Ricket_^s,     3  Camp.    63;    Tiner  v.    State.     44  Tex.    126;    Bellnv^ 
V  .    Snannon  .     2    :iill,     36;    Haffert  y-TTTecTTi,— Tin  . )    18   An.    Rer.    60^: 
Jones   V.   ^a^,      iTex.    AppTr^~3V~C  Rep.    SCT,     B  ;^.m.    St.    Rer.    454;       ' 
T^^    l-    ?/"/.?^   ^y-    ^23    (2   S.    ;7.    Rer.    9C4')  ;    Starry.    U.^S.. 

8§  Gs      nR^Mi  ^^      l^^^i   '^^•.^11-    ^^^'     ^^  ^-    -^'   e^);    C-rocm-^  State. 

'Sphnn'    -   I   '      .?;    E.    Rep.    1035,     21    Am.    St.    ReT> .    179);    State  v : 

^ah^      o  Har     566;    '^'h^art on.  Criminal   Law;    Golden  v.    StaF?.-l~sT  C. 
Mkfr^^SflH^rg:^'     ''   '^'   '''    '^  ^^'    ".V— e^:^69Tr5rennan_v, 

-eneral^in^'L^o'^r    ^^'^tructed  the   jury   quite   clearlv  uPon  the 
.eneral   principle  here   discussed,    but    in  making    reference  to   the   c-     - 

5263 


(^4 
The  Warrant 


on  trial    said  to   the  jurj^  that    i  "^  the  officer,    ui.on  reasonable   m- 
forration  and  telief  of  the  defendant's   guilt,     -sunr^oned   a  posse 
of^ltizens      and   with  ther,    armed   with  guns   and   re^^olvers,    y/ent 
?o  ?he  dSot    wSere  the  defendants   were  at    t>ie  tirne     and    -v^t n  and 
in  the  vresence  of  the  posse  called  uron  the  defendants  to   throw 
up  their  hands,  and   informed  them  that    he  wanted  tnem.     '^-^-^^^/J^ 
resistance  was    unlawful,     and   if.     in  making   such  defense.     Sundblad 
was   killed,    then  defendants    were  guilty  as    charged.  '    lO   nake  sue-, 
rule  applicable  theijury  sho-uld  have   ceen   charged  t>-ey  inust    also 
find  that   defendant !5  knew,     or  as    reasonable  ;aen  ougnt    to    na/e  knovr... 
that   their  arrest    was   sought   bv  lawful   authority,    and   ^nat    i,neir 
personal  ^afetv   was    not   being   imperiled  at    tne  hands   oftne  forest- 
ing  forc^.   The' defendants   were,     so      far  as   appears,     entire  strangers 
in  the  ^ighborhood;   there   is   no    evidtmce  tha-^   they   knev/  the  ol.i- 
cial    character  of  Lodine;    the  demand  made   upon  them  did   not    neces- 
sarily    mean  a   summons  to   submit   to   lawful    arrest;    tne  aemcnstra- 
tion  of   force  against   them  was    such  as    would   amount   to    an  assault 
if  made  without    proper  authority;    and    it    should   have  teen  left   to 
the   jury  to    say   whether  defendants   were   sufficiently  apprised  of 
the  lawful   purposes   of  the  marshal   and   his   party. 

ether  questions   are   raised  by  counsel,     cut.     in  x-iew  of  the 
conclusions   already  announced,     it    is   unnecessary-  to    consider  them. 
The   judgment   of  the  districl_^- court    is    reversed,    and  the  cause  re- 
manded  for  8    new  trial_j^   P.ev ers ed  . 

(Deemer,     J.,  dissent  ed) 


Stat  e  ".   Towne. 

Supreme  Court    of   Iowa,    1917.      18C    lov/a    359. 

From  a  conviction  of  m-anslaught er  the  defendant   appealed. 

Deemer J.    -    I.      The  facts   are  not    seriously   in  dispute,    and 

the  arguraerS    is  largely  directed  to   the  sufficiency  thereof  to 
sustain  the  verdict  . 

Defendant    v;as    a  business   man,     engaged   in  handling  general   mer- 
chandise  in  the  town  of   Jcimaica.    He  lived  on   che  same  street   on 
which  his   store  v/as   located,     and  about    five  blocks   due  north  there- 
of,    his   house  being  the  last    ojie  on  that    side  cf  the   street,    llorth 
of  his   house  was   a   public   highwaj'.     and  north  of  this   hiprhway  v/as    a 
cornfield.      At    the   intersection  of  the  fii'st    street    south  of  his 
house  with  the  street    on  v/hich  the  house   is    situated,    there  v/as   a 
small    wooden  bridge,  and  just    south  cf  that,  a   small   hill    rising  some 
X   or  4c    feet   to   the  sidev/alk  on  the  v/est    side  of  tJl^street.   De- 
fendant's trother  lived   about   midway  hef.veen  his    (defendant's) 

5263 


The    rf7erra:it  ■^•- 

housp   p^xd   his   store,     and  on  the  same  Bide  of  the  street  .   At    about 
a-ZC   o'cioc]^   in  the   e^'ening  of  March  13,    1915,    three  of  defendant's 
chiidT-en     a   daughter,     Gretchen,    19  years   of  age,     and  tv;o  toys,    one 
atout    15   and  the  other  12  yesrs   of  a^e,     left    defendant's    store  ar.d 
started   fo^  their  home  UTi_the  street    which  we  hare   .iurt    described. 
They  v/e^e   -followed  by  a  stranger,     v/ho    is   described   as   a  ta^l    man, 
•wearing   a   cap  with  the  visor  dovv:o  and  pulled  over  tne   ^y^s     This 
stranf^er   followed   the  children  as    far  north  as   defendant's  brotnerr 
house  \vhere  he   followed  defendant's   daughter   into   the_jz^d_^.    Defen- 
dant   followed  his    children   from  the   store  almost    immeaiatexy,     an^ 
overtook  them  at    the  brother's   house.    He   found      his   daughter  and  his 
sons    standing   near  the  house,  and  the  stranger  standing  10   or  1^ 
feet    north  of  them.      i.bcut   the  time  the  defendant    arrived  at   tne 
house     the  stranger   remarked  to   one  of  the  boys:    "Are  you  just    corn- 
in^   home    from  school?"      As  the  defendant    passed  on  tne   sidewalk 
going   north,    the  daughter   went    past    the   stranger  to   meet    ner  ff^-'^er, 
and  as    she  did  so,  this   stranger  leaned   forward   witn  nis    cap  pulled 
down  took  a   step  or  two    in  advance,    and  made   some  remark  to   the 
young  lady,     which  none  of  the  bystanders   heard  or  understood.      T-ie 
girl°was    frightened,     and,     with  her  youngest   brother,     r^.n  p^ot    her_ 
father  and  on  to   her  o'/m  home.    Defendant    and  his   oldest   boy  walkec 
on  together  toward  their  Tiome,     and  the  stranger  followed  them  un- 
til  they   reached  their  own  house.      As  they  approached  their  house, 
defendant    instructed  his   son,     who    was    v/ith  him,    to    run   into   the 
house  and  get    his   gun  -   a    shotgun.     The  boy  obeyed,    brought   the  gun 
out    and  loaded    it,     and  handed    it   to   his    father,     near  the  South  door 
of  the  house  at   the  west    end  thereof.      It    should  be  remarked  that 
the  streets   were  not    lighted    in  any  manner,     and  that   the  night    was 
dark.      When  defendant    received  the  gun   from  his   sen,    the  stranger 
being   in  the  yard   of  defendant's   house  and   something  like  15   feet 
away,     and  approaching  him,'  he    (defendant  )  ordered  the  s"*"  ranger   not   to 
come   any   clos'^r,     and   asked  him  v/hat    he   was    doing  ther*.   The  stranre* 
replied  that    "he  had   just    gotten  off  the  train  and   was    walking 
around."    Ke    (defendant  j    asked   him  his    name,     and   he    responded  by 
asking:    "Who   lives   here?    Ke    (def enda:at )    then  asked   him  v/hat    his 
business    was,     and,  instead  of  answering,     he  asked   another   question 
^nd   continued  to    walk  tov.'ard  the  defendant.      Defendant   then  told 
him  not    to    ccme  any   closer  or  he  would   shoot,    and  at   the  same  tim^ 
it    is    claimed,    told   him  he  would  take 'him  up  tov/n  and  turn  him.  ever 
to  the  marshal.      Acting  upon  this   suggestion,    he  ordered  the  strang- 
er to   go   ahead   of   him  down  town.     The  stranger  started  toward  towr; 
with  defendant    and   his    eldest    son   following   him,    the  defendant    with 
gun   in  hand.     The  stranger  halted   at   times,    but    defendant    pressed 
him  on.      vVhen  they  got   to   the  bridge   south  of  defendant's   house,  the 
stranger   stopped,     a:ad   said  to    defendant    that    he  did  net    intend  to 
hurt   them.    Defendant    again  told  the   stranger  to  move  on  down  tov/n, 
and  the  stranger  proceeded  on  across   the  bridge   and   on  to   the  top 
of  the  little  hill    v/hich  we  have   described,     and  there   stoprsed.    De- 
fendant,    v/ith  his    son,     was  :t2ien_at    the  bottom  of  the  hill.   As   he 
reached  the  top  of  the  hill,  the  stranger   stopped,     scream.ed   in  a 
loud  tone,     "You   fellows,  "   and   rushed  back  with  arms    extended  to 
wliere  defendant    and   his   son  v/ere   standing,  and   came  within   3  or  10 
feet    of  defendant,     v/hc   had  then  lei^-eled   his   gun  upon  the  stranger, 
and,     as   he  approac'  ed,    defendant   savs   he  made  a  motion  as    if  to 

5263 


The    ./arrant .  ,  66 

grab  the  gun,    when  he    (defendant)    fired  both  barrels   at   the  strang- 
er,    fepulting   in  v/ounds    from  which  the   stranger  died  the  next    after- 
noon.     This   stranger   was   soon   found  to   be  a  man  named    William  Eerry, 
an  eccentric,     if  not    insane  person,    who   had  a  brother  living  at 
Jamaica    until   a   few  days   prior  to  the  shooting.      Berry  had  lived   at 
Perry   until   a   few  months    prior  to   his   death,     and,     after  leaving 
Perry,     lived  at    Wa^lcee,     where  he  was   working   for  his  board.    He  was 
discharged  by  the  people  for  whom  he  had  been  v/orking,    because  of 
his   peculiarities    and   eccentricities,     and   taken  by  them  to   the  depot 
in   Afaukee  on  the  day  he  was   killed.     Before  he  died,    he  told  defen- 
dant   that    he    (defendant)    v/as    in  no   way  to  blame;   that    he  forgave 
him;    and  that,     if  he  had  not    followed  defendant's   daughter,    he  would 
not    have  been  hurt  . 

The   court    submitted  the  case  to  the  jury  to   determine  whether 
or  not    defendant    was   acting   in  self-defense,    and   instructed  that 
the  defendant    was    not    justified    in  using  a   deadly   weapon   simply  to 
effectuate  an  arrest    of  the   stranger  for  violat  ion  of  some  tcwn 
ordinance  or   for  a  misdemeanor,    whilst   thes^   instructions   are   com- 
plained of,    they  seem  tc   announce   correct    rules   of  law,  and,    on  the 
vi/hole  record,    the   case  was  properly  submitted  to  the  jury   for  it 
to   determine  whether  or  not    defendant's   act    v;as    in  lawful    deferjse 
Gf  his  person.     .  ___ 


The   follov/ing    instructions   ar*^  challenged: 

"If  you  find  from  the   evidence   in  this    case  that    said   William 
Berry   was   at   the  time   in  any  manner  disturbing  the  peace  and   quiet 
of  the  defendant,     o  r  jiis    family,     within  the  town  of   Jamaica,    then 
he  was   guilty  of  a  violation  of  the  provisions   of  said   ordinance, 
and,     if  said  offense  was   committed  or  being   committed   in  the  pres- 
ence of  the  defendant,    then  the  defendant    had  the  right    under  the 
law  to   arrest   or   cause  the  arrfest    of  the  said    William  Perry,    and 
to  turn  him  over  to   a  peace  officer  of  said  town  of   Jamaica.    You 
are  instructed,    however,    that    in  making  such  arrest,     if  he  did  make 
such  arrest,    or  attempt   to  make  such  arrest,  it    v/as  the  duty  of  the 
defendant   to   in  some  manner  give  said    William  Eerry  to    understand 
that    he   was    so   placed   under  arrest,    and  that    said   William  Berry 
should   subm.it   to   such  arrest,    and  that    it    was  the   intention  of  the 
defendant   to  turn  said   William  Eeri'y  over  to   a   peace  officer  of 
the  tO'/m  of  Jamaica.      In  making   s^fih  arrest,    the  defendant    had   no 
right   to   use  any  other  means   or  any  greater   force  than  v/as    reason- 
ably  necessary  to    accomplish  that    purpose,  and,     in  his    efforts  to 
make   such  arrest    or  to   turn  said    ,/illiam  Eerry  over  to   a  peace 
officer  of  the  to^vn  of   Jamaica,  in  accomplishing  that    end  alone,     he 
had   no    right   to  make   use  of  a  deadly  v/eapon  iiL_a  deadly  manner  to 
accomplish  such  purpose;    and   so   the  defemtsno    cannot    justify  the 
taking  of  the  life  of  said    William  Berry  merely   on  the  grounds   that 
he,    as   a  private   citizen,    had   the  right' to   arrest    said   William  Berry, 

5263 


T-'^e   Warrant 


67 


^•id  v/as    in  the  act    of  taking   said    William  per^y  to   3   re-ce  officer 
of  thp  town  of   Jamaica   for  the  r.urpose  of  turning  him  over  to    such 
-^eace  officer,     and  thij;    feature  of  th^   cose   is   -ubnitted  to  you  on^y 
>or  the  pu->^rose  of  your  determination  of  the   fact    aa  to   v/het.ier, 
u^der  f'll   of  the  circuir^stances   disclosed  hy  the  proof,    tne  defen- 
dant   was   at   the  t  ime   justJXieLJjLieing  armed   -/ith  a  deadly  weapon, 
a'^d    in  usinr   sane~Th  a   deadly  manner.      And   EO,     in  the  determination 
of  thiP    case,    vou  will  bear   in  mind  thrt,    so   far  as   the  nerej^ring 
o'  an  arrest   by  the^d-efendant   as   a  -orirate   citizen,    of  s^id    .r.iiia'- 
Be-^rv     ari^Tnatt  empt  ing  to   deliver  him  to   s   neace  officer  of  the 
tovm''of   Jarr>eica,     Iowa,    howe'/er  said    William  Eer^-y  r\i:^7  have  resisted 
such  an  arrest,     if  it    v/ent    no    further  thp.n  mere   resistance  to    such 
arrest    or  attemt)t   to    flee   from  said  defendant   to   avoid  an  arrect, 
the  defendant    would   not   bj3_justrif ied   in  u^^in.?  a     deadly  weapon   in 
a  deadly  manner;    nor  wculdiie  be   justified   in  so    using   such^dec.dly 
weapon   in  a  deadly  mann.er_-anl  ess    in  doing   so    he  was   t-cting    in  neces- 
sary seif-defenjse,    as   his    right    in   reletion  thereto    is   r.xre   fully 
explained  to  you  in  subseqvieiit    instructions." 

These  announce  correct,     well-established   r^jl  as   of  law,  and   no 
authorities    need  be   cited    in  their  support. 


if  firmed. 


(3vans,  J.,     dissented). 


St  at  e  V  .    Smal  1  . 


Supreme   Court    of   Iowa,    1918.-    Iowa,     -     168   IT. 


Ladd,  J.     The  defendant    is    ch 
by  a  policeman  "i/ithout    a 


'ged   with  having 
.varrant  .      His   offense    is 


'esi?ted  arrest 
id  to   be 


"using  of  loud,  boisterous,  obscen-a  and  abusive  language  in  a  public 
r^lace  and  disturbing  the  peace  and  ouiet  of  the  community  and  acting 
in  a   riotous,     indecent    and  unlawful   manner." 


The  policeman  testified,     in  subst?-:-ice,     tliat   defend 
one  Snyder's   pool    hall    and  asked    for  pon,     saying  that    " 
put    into   som.e  more  alcohol"   and,  aprlyin^;  an   epitliet   to 
added  that    he   could   not   take  that    away  from  him;    that   t 
responded    that    no   one  had   said   anything   about    doing  so; 
then  iiSked   defendant   to   leave  and   iie   refused,     v/hereunon 
advised   him  to   go   home  as   he  did   net    care  about    arrest i 
defendant    answered  that    he  would  not   do    it,    that   there 
enough  policemen   in  town  to   arrest    him,     upon  -./hich  the 
aim     he  was   under  arrest    and  took  hold  of  him;    that    a   s 
sued   in  which  defendant   struck  the   witness   and   got    hi 

5263 


ant    entered 
ti'-is  was  to 
the  officer, 
he   witness 
t:iat    Snyder 
the  witness 
ng   him,     and 
\/ere   nou 
v.'itness  told 
cuffle   en- 
by  the   neck 


Tlie   Vvsrrant  63 

and  toth  fell;    that    defendant   tcon  said    if  he  v.ere  allcv/ed  to   get 
up  he  would  go    with  hirr.  like  a  man,     out    upon  arising   struck  at   the 
witness   and   v/ent    out    the  door,    threatening  the  v/itness    if  he 
followed  him  and   v/ent   tc   his   home.    "i^.    .Vhat    caused  you  to    arrest 
him?   A.    He  Veger.  tc   ahune  me  and  did  net    pay  any  attention  tc   the 
houseman,    L:r,""Snyder .      D:d   not    leave  when  told,    and  Snjrder  raid, 
'You  v/i.M   ha^-e  to   do    soriething  v/ith  hir..'" 


,  and  he  did  go   home,    and  the  officer   came  down  to   his   house; 

that   the  officer  said  nothing  about   arresting  him;    that    he  had   not 
teen  drinking,     had   no   alcohol   there;   that    he  was    in  the  hall    not   tc 
exceed  two   iTiinutes,     and   went    straight    hone  and   said  nothing  after 
he  left    the  hall. 

(1)    From  this    e-v-i^ence  the   jury  might      have  found   the   contrcv- 
ersi'  to   have  teen  sol  el;-  ter\.-eenthe  officer  and  defendant,    that 
the  defendant    v/as    innocent    cf  v/rongdc  ing,  and  that    no   public   offence 
was    coninitted   in  the  presence  cf  the  officer.   An  officer  may  make 

an  arrest    v/ithcut    ';   v/ar-^ant :    "(l;    gor^jL_Sjj^^  ^"^  °"'-^^^^^"   ^^^^"'^"'^x^^ 
0  r  at  t  empt  ed   in  "-:•'.  s   -c  r  es  en  c  e.     ( 2  ]    v/Ser^~a   putiic  ciienRe  has"^  in 
faC^  t  een  com:"  it  t  ed,     and  he   nss   reasonable' ground   for  believing  that 
the  perpcn  to  be  arrested  has    co.mr;iitted    it."      Section  5196,     Code. 
An  offense,    then,  must    have  been   Admitted    in  the  -cresence  of  the 
policeman  in  order  to  have   juptified  hini  in  making  the  arrest.    It 
IS    not    enough  that    he  -ay  have  so  thought    or  have  had   reas^nabir 
grouna   so  to  believe;   tne  offense  must    actuall"  have  been  atter^-^e^^ 
or  comm:..oed   in  nis   prs3ence  to    have   .-astified  the  arrest.   S  ^^d'e'V  t^' 
T^cnrson.^  lo4    Jowa.     725.112  II.    W.    239;    Stearns   v.   Titus.    195^:1.7. 
,','-.           "■■ '    -•   -^^    '  •      ^se   no-e  to   Frir>e  v.   TP'h'^n      34  t      -d      a       f-yr  c^   \ 
1182,     in  which  the  cases   ar-  collected.  ^"  ^  ' 

^t^i-JVj^r"-'^'^'-^   ^"''^'     ^^less   the  conditions    -ecited    in  the 
statute   eT^''st      t  ^e'  Piy^e^c^-i-    i  <-.   ,,v^t  ^,..^,.^    _j^i  ^.^^    ^    ^.1.   ^.1.^ 

re-^-s-    v"-^^^'.r.-o'-^;r^ "    ^   un_c.v^u^   and  the  p?rty  arrested  may 
aI"::  "-      ^y-^-  '^^^^  ^-   appears   to    him,    acting  as   OT^d^na-^l-.-  ^--u- 

flSe^'o.'^v^'c^M^e^'^ij  r^^?^"^^-..^^^  ^^"  !ealous?3^"gu;ids"S; 
^i  vl^"         -  '^r,     c_^i^en,  ana   a   putlic   officer  has    no    -r-irht      bPf»Pn^P 

?o  V?^^"'^  station,     ne  should  be   found    -uilt".      Th^'s   entirely  over- 
looked the  inquiry  as   to    v/hether  the   defendant    was'^n^^ged   i<  ?he 
commission  of  any  offense  at   the  time  of  the  errSst      an^   in  4i^ 
respect    was    erroneous.      In  the   instructions    fJuo^n/^he   Jui^^'Jas 

5253  ^  o      ^     ■ 


The    ifer^a.:t  69 

tolH   that    defendant    ov/ed  the  duty  tc    sut.-r.it   to   the  officer,     if  he 
knev.'  o-f  his   officio!    chrrscter   "/o.^.n   informed  that    he  v/as   arrested. 
He  owed  no   such  duty  unless   r.t   the  tine  he  v/&s    engcged   in  the   com- 
mission of  £   pu'i-lic  offense. 

Judgment    is    reversed,  and   cause  remanded* 


Section  •*  . 
The     Arvest . 

"Arrest    is  the  taking   of  a  person   into    custody  wir.&r.   and   in 
the  manner  authorised  "by  lav/,  and" may  be  made  at    any  time  of  any  dcy 
or  Tii^ht  .'•       (519  3) 


Hbbts  V.    Illinois   Central   R.    Co. 

Supreme   Court    of   Icv.'S,    1917.   182    lo'.va    316. 

per   Curiam .    •*... 

It    13   Strenuously  argued  that   there  was    no    evidence  of  any 
arrest    save  the  one  after  the   info  rmrt  ion  v/as    filed,    and  that   this 
was  made  under  a  t> ro t) er  wa j r a,nt ,    and  "by  the   chief  of  police.  An 
arrest    is   defined  by  our   Code  as: 

"An  arrest    is   made  by  an  actual    restraint    of  the  person  tc 
be  ar-^ested,  or  by  his   submission  to  the   custody  of  the  person  mak- 
ing the  arrest.  "  ITo    unnecessary   force  or  violence  shall  be  used   in 
making  the  ssme,   .and  the  person  arrested   shall   not   be  subjected  tc 
any  greater   restraint   than   is    necessary      for  his  .det  ent  ion." 
Code  Section  5194. 

There  need   not   be  an  application  of  actual    force,  or   such 
physical    restraint    as    is  visible  to  the  naked    eye.      McAleer  v . 
Good,  (la.)    IC.   L.    R.   A.    (:T.   3.)    iOo. 

^     Stockton,     J.    -    First"!     As  to  the  demurrer  to  the   Indictment, 

not    necessary,     in     charging  the  defendant    vath  kiicwingly  and 


he  act.-  under  the  authority  of  a  v;arrant,  and  if  required,  must  t)ro- 
duce  and  show  it.  Code,  section  2339.  '  But  it  yq  riot  necessarj'  tha.t 
the   indictment,     should   set    forth,     at      length,    the  acts   of  the  office- 

5265 


\ 


The  Arres"! 


7C 


or  shcv.;  that    in  malciiif^  the  Prr£3t.  ne  ciomrlieQ..in  allre^pecoo    ^x.h 
the  re..uisites   of  the  statute.      In  s eryrnry^Te-wrrfT^  v/ill  be  pre- 
sumee  to   hsve  discharged  his   duty;    and   if  tne  deienaant^  f.Slf  kp 
the  fact   that    he  or.^itted  to   declj.re  the  authority   under   vhicn  he 


acted,     it    was   proper_ii£^t_er  of  defense. 


State  V.    Smith. 

Supreme   Court    of    lo::e,    1905.    127    lov/a   534,     105  IT.    'AT.    944. 

From  a    conviction  of  r^anslaur^ht  er   under  an   indictment    for 
murder,    the  defendant    appfi^  ed  .  ^.,--- 

Deemer,     J.    -   Defendant    shot    and  killed  one   William  G.    Sarver. 
At   the  time  of  the  homicide  the  defenda-it    was   a   policeman    in  the 
city  of  Albia,    and   had   arrested   -vithout    a  warrant    S.    D.    Sarver, 
father  of    ■^Tilliair.  Q^,  for  the  crKr^e  of  drunkenness  .    ./illiam  G.    in- 
terfered   in  the  matter,     and   as    a   result    of  the  altercation   received 
a  -Distol    shot,     from  the   effects  't)f  which  he  almo^-t    immediately  died. 
Defendant    contended  that   the  killing   was    just  if  iabl  e  on  two   grounds: 
First,    because   in  defense  of  his   person;    and,  second,    because   it    v/as 
necessarv  to   '^revent    a   felony,     and  to   secure  an  arrest   of  the  de- 
ceared,    or  to  prevent   his    escape. 

The  trial    court    gave  the   folioY.lng   among  other  instructions: 

{2Z]    Vifhen  a  peace  officer,     in  making   an  arrest    for  a  nisde- 
m.eanor,     is    resisted  by  violence  r.nd   force   in  making  such  arrest, 
then  such  officer  has   th'e  right   to   resist    force  Jbv_fcrce;    and   when 
the  ^esi!^^tance   is   vi'olent   and   determined   such  officer   is   not   bound 
to  make  nice  calculations  as  to  the  degree  cf   force  necesst^ry  to 
accomplish  the  purpose^    but   may   use   Guch._a   reasonable  degree  of 
physical    force   in  overcoming   such  resistaxice  and   Effecting   such 
arrest    as   may  reasonably  appear   necessary  therefor,     and  to   prevent 
the   escape  cf  the  party   v/hon  he   is   arresting;    but    he  has   no    right 
to  take  the  life  of   such  person,    or   inflict    on  him  s.  great   bodily 
harm,     for  the  purpose  of  m.aking   ruch  arrest,     except    when  the  officer 
has   a   reasonable  apprehension  of  peril   to    his   own  life  cr  cf  suffer- 
ing great   bodil;-  harm.  '     ' 


?.nd 


(24)    If  you  find  that   the  defendant   had   arrested   S.    D,    Sarve 
'N,    G.    Barver,     with  knov/ledfre  thereof,     apT5eared,     and   undertook 


by  viclenco  u"oon  the  defendant   to    effect    the  releasee  of  S.    L.    Sarver 
from,  such  arrest,    then   it    v/as  the  defendant 's   duty  to    arrest    him.,     and 
his   duty  to    submit    th.ereto;    c\nd   if  the  said    J/.   G,   Sarver  by  violence 
upon  or  against   the  defendant    resisted   such  arrest,     and  attempted 
to    escape  therefrom,    then  the  defeadant    hed  the  right   to    resist   by 
force,     and   was    not   bound  to   make  nice   calculations   as  to  the. degree 
of   force  necessarv  to   accom-olish  the  arrest,     cut    he  hpd  the  right 

5263 


The  Arrest  'J- 

tc    UBP   such  a   reasonable  degree  cf  T)iiysical    force   in  overcoming 
such  -^esista^.ce  and    effecting:  such  arrest    and   preventing   an   escape 
.-^s   ap--eared   reasonatl^   necessary  therefor;    but    he  had   no    right   tc 
••■ake  *he  l-:+"e  of   said   3prver,    or   inflict    upon  hin  a   great   bodily 
^niury 'simply  to    effect   the  arrest,     unless   he  had   reasonable  appre- 
hension to   peril   tc    hi's   own  life,    or  of  suffering  great   bodily 
ha.  m . 

The   defendant    asked  the  folio  wing,     which  v/ere   refused,    to-wit; 

(1)    If  you  find     that    3.    D.    Sarver   and    rfid   Sarvcr  were   in  a 
condition  of   intoxication,     and   were  therefor  placed   under   arrest    cy 
the  de+-endant.    then  you  are   instructed  that    it      was   their  duty  to 
submit   to    such  arrest,     and  they  had   no    rigiit,    by  violence  or  other- 
wise,   tc    resist    such  arrest;    and   if  they  attempted  to    escape  from 
the  arrest    it   was   defendant's   duty  tc   resist    and  prevent   the  escape. 
And   if  vou  find  that    they  did,    by  violence  upon  the  defendant   or 
otherwise,     endeavor  to    escane   from  such  arrest,    then   it    v/as   the 
dutv  o-f' the  defendant    to   do   his   utmost   to   prevent    such   escape,     and 
in  preventing   it    he  had  the   right   to    use  all   the  force  and  violence 
that,  under  all   the   circumstances   and   conditions   then  surrounding 
him  at    the  time,     seemed  to   him  "in  good   faith,     as   an  ordinarily 
reasonable  man,     necessary  tc   prevent    such  att  em.pt  ed    escape,     even  to 
the  use  of  a  deadly  weapon,     if   it    so    seemed  to   him  necessary  to 
use   it. 

(3)    If  you   find  that   the  defendant    had   arrested   8.    D.    Sarver, 
and  that    Wid   Sarver,  the  deceased,    appeared,     and  undertook  bv  violence: 
upon  the  defendarit    to    effect    the   release  of   3.    T.    Sarver   from  such 
arrest,    then  it    was    defendaiit 's    dutv  to   also   arrest   the   said    \Vid 
Sartre]",  and   it    was    said   Server's   dutv  to    submit   to   such  arrest;    and 
if  the  said    ,7id   Sarvei',    by  violence  upon  or  against   the  defendant, 
resisted   such  arrest,     and  attempted  to    escape  therefrom,    the  defen- 
dant   had  the  right   tc    use  all   the   force  end  violence  that    to   him, 
in     gcod    faith  as   an  ordinarily   reasonable  nan  under  all    the        sur- 
rounding  circumstances   and   conditions   seemed  to   him  necessar;.'"  to 
prevent    the   escape. 

Cf  the   instruct  iona   given  and  of  the  refusal   to   give  those 
asked  defendant    complains".     Takinj  up  the  ones   given  in  the  order 
ciuot  ed,  we  are  of  opinion  that   the   first    v/as    correct,    v/hile   the 
authorities   are  not    in  lU'.rmony  upon  the  preposition  involved,    the 
better   r^ole  seems   to  be  that    an  officer   is    not    justified   in  killj.ng 
a  mere  misdemeanant    in  order  t o    feff ett  aat  g_JJ.•^ -a^rgfT;     or'tc   pre- 
venT~'g;s^  escape  aft  er   arx£St  .     "itl  such  cashes    it    is  better,     and  mere 
in  TlTfTsoTiance  v/ith  m.odern  not  ions    regarding  the  sanctity  of     human 
life,    that    the  offender   escape  than  that    hi?   life  be  taken,     in  a 
case   where  the   extreme  penalty   would  be  a  trifling   fine  or  a   few 
davs '    im.rrisonment    in  jail.      Reneau  v .    Stat  e,     2  Lea,     '^ac    (31   Am, 
ReVi .    626 )  ;    Ski  dmo  re  v  _^  State,  "5"  T  exTAnp.    2C  ;    U .   S.   v  .  _C1  ark_   (  C.  C .  ) 
31    Fed.,  710  ;  'Hea  J  --  7  Mart  i  n,     65   I-f^^ .   48C    (3  3.    ^i~'522TT  omitH  v.    Stat 
59  Ark.    132    ('26   S.    W.    712,     3.c.4o  Am.    St.    Retj.    20 ) ;    Stafe~v.   Moore, 

5263 


The  Arrest  72 

5?   Conn.    2-^4;    Bilger_T_.__CcK:_^  ,     SS   Ky .    55C    (11    S.    V/.    651).   To  this 
rule  t^ere  are   scne'efccepticns,  as    in  ctses   cf   riot,    mcc   violence, 
etc.      ITone  of  the   exceptions   anply   to  this    case,    however.   The 
general    rule  does    not,     according  to   the  great    weight   of  authority, 
apply  to    felonies.      Here  -an  officer  may  OT^rcae   force,  to    force,    and, 
if  there  be  no   othe:^   re&sonehlc  a-ofsrent    method   for   effecting  the 
arrest    or  preventing:    the   esc?-ne  of  the   felon,    the  officer  mav,     if 
he  has   performed   his   duties    in  other   respects,    tfke  the  life  of 
the  offender.     This    rule  net    onlv   a-oplies   tc    the   felon_hira£.e]X.   t^* 


76   GaT  g"73;  "State  v .    Inland,     97   i; .   C.    438    (    2   S.    ii.    ^TecT;'.    "Even   in 
such  cases  the  officer   is   not   the  arbitrary   judge  as  to   whether  the 
necessity    exists    for  taking  life.      That    ^iuestioa   is    ultimately   for 
the   jury    under  proper   instructions.    Stat  c  v .    j^lund,    ^upra.    But    it    if. 
erroneous    in  such  cases    for  a   court   tTc  "liisfruct    as   a  matter  of  law 
that    an  officer   is    not    justified   in  taking  the  life  of  a   lelon. 
1    East,     P.    G.    296.      The  authorities   on  this    subject    are   collated   in 
an  excellent    note      found   in  Hawkins   v._  Commonwealth,     61    ^ra.    Dec, 
pages   151-164.   The   reasons    for"t~Hese  rules    are  "apparent  .      An  officer, 
in  the  per:fcrmance  cf  his   duty  as   suci^i,     stands   on  an   entirely  dif- 
ferent   footirig   from  an  individual.      He   is   a  minister  of  justice,     and 
entitled  tc  the  peculier  protection  of  the  law.    Without    submission 
to   his   authority  there   is   no    security,     and   anarchy   reigns    su-Drerce. 
He  muft,     of  necessit;/,    be  the  aggressor,   rnd  the  lav/  affords   him 
special    -nrotection.      In  his    capacity  as   an   indivldurl   he  may  take 
advantage  of  the   "first   lev:  of  npture,  "   and   defend  himself  against 
assault;    as   an  officer  he  has   an  affirmative  duty  to   perform,    and 
in  the  performance  thereof  he  should   so   long   as   he  keeps    within 
due  bounds,    be  protected-    Sent  imentalisn  should   not    go    so    far  as  to 
obstruct    the  due  administrst  ■'on  cf  la.v.     end  brute   force   should   not 
be  permitted  to    obstruct    the   wheels   cf'  justice, 

ITow,     in  the  rrecent    case  there  wss    evidence  tending  to    show 
that    efzer  the       defendant    he  d   placed  3.   f.   Sarve-^  under     a:>'rest 
for  drunkenness,    and   v/a^;    endeavoring  to  take  him  to    jail,  he    (Sarver) 
wss   attempting  to    esca-^e   from  such  arrest,    and  thct    //.    G.    Sarver 
made  an  assault    ur^on  the  officer   for  the  purr^ose  of  aic'.ing  his 
father  xo    escape;    that   the  defendant    then  attempted  to   arrest.    ■//, 
G.  Srrver,    v.-ho    resitted  the  same,     and  continued     his   assault    upon 
the  policeman;    and  that    finally  defendant    shot    ^.  G.   Sarver,     in- 
flicting  wounds    frcm  which^,^    (Sarver)    died.      To   meet   this    feature 
of  the  case  the  trial 


,  end- 


he    (ServerJ    was    resisting  and  assavItTng  the  officer,     not    only  to 
effectuate  his   o  «n   escape,    but    alsc   to    secure  the  release   of  his 
fe*her,     S.   D.    Sar^-er.    Section  4896   of  the   Code  -orcvides   that: 
"Eve-y  person  v;hc    aids  or   assTsts   an;'  prisoner    in  escaping  or 
attempting  tc    escape,     from,  the  custcTiy'of  any   sheriff,  '  deputy 
sheriff,  marshal,     constable,    or  otr^^  gfficer,     or  nerson   who   has  t] 


The  Arxest  '3 

la-wful    charge,     v/lth  or   without   a  warrant,    of  such  prisoner,     upon 
any   criminal    charge,    shall  be   fined   not    exceeding  one  thousand 
dollars,     and    imprisoned    in  the  penitentiary   not    exceeding  fire 
years.'*     The  penalty  provided   for  the  prohibited   acts  makes  the 
crirnea   felony,  and  the  law  as  to   the  duties,    obligations,    pov/ers, 
and  "rTg^TT^^f  an  officer   in  making  arrests    and  preventing   escapes 
of  those   engaged    in  the  coTronission  of  a   felony   clearly  applies. 
State  V.   Turlington,    102   Mo.   642    (15    S.    W.   141). 

The  third    instruction  asked  by  the  defendant,  or   something 
like   it,    should   have  been  given.  The  killing  must,     of   course,    be 
apparentlj/  necessary,     for  one   is    net    justified    in  taking  human 
lif^-i-r there  be  any  other   effective   way  of   effecting  the  arrest; 
but   this    is   a   .luesticn  of   fact    for  a   jury,    and   not    of  lav/  for  the 
court.     The  Attorney-General    contends   that   there   is    no    evidence 
in  the  case   v/hlch  called   for  an   instruction  on  this   subject.  The 
trial    court   thought    differently,     and   submitted  the  natter  to    a 
jury  under  an   erroneous    instruction.      Such  being  the   record,     pre- 
judice will   be  presumed,     and   the  case  must   be   reversed,     unless    it 
affirmatively   appears   that   the   error   was   without   prejudice.   The 
def eridant 's   testimony   -   v/hich  we  shall    not    set    out    at   this  time   - 
was    such  as  to    call    for  a  proper   instruction  on  the   subject,     for 
it    tended  to    show  that    W'.   G.   Sarver  v/as    engaged    in  the  commission 
of  a   felony,    to-v/it,    of  attempting  to    secure  the   escape  of   a 
prisoner   in  the   custody  of  a  policeman,     when  the   fatal    shots   v/ere 
fired.      If  the   jury  believed  the  defendant's   statements,     it    might 
have   found  that    w.   G.   Sarver  made  an  assault    upon  the  defendant, 
a  policeman,     after  he  had  lav/fully  arrested   S.   D.    Sarver,     for  the 
purpose  of  securing  the  escape  of  S.'  D.    Sarver.    In  so   doing  he 
was    engaged    in  the  commission  of  a   felony,     and  defendant,    as   an 
officer,    had  the  undoubted    right   to    use  a   v/eapon  to   prevent   this 
felony;    if  that    were  the  only   reasonably  atjparent   method  of  accom- 
plishing the  result.      State  v,  Moore.     31    Conn.    479    (83  Am     Dec. 
159);    Ponl^^^People.    ^-Mich.   15C;    R'uloff  y.   Peolle  4  T/y     oj^: 
hoSer     must^iJ*  -J^  ?i^-u^^^'      ^-  ^^^^^ng   upder  such  circumstances, 
ventTnJthe   fP^Jn-^   '^  ^^S^^^^^g^    and   non-n.egligent    tpurpoge  of  pre- 
SfmSl   ll9-(ir<T.    TM],''""  "''''  otheVre^i^Hrp^e  v.   Lrt. 

instruction'''^nrfT«  ^^^    '"  r"""^   in  giving   its   twenty- fourth 
instruction,     «nd  the   judgment    must    therefore  be   reversed. 

Commercial    Exchange  £ank  v.   Mcleod. 
Supreme   Court    of   Iowa,     1S85.      65    Iowa   665,     19   N.    ^,    329. 

tained   the  plaintiff  appSlST^  *  °'°^'''''  ^""^"^  ^^^"  ^^^- 

526  3 


The  /»rreflt  '^ 

Rothrock.     Ch .    J.-  Cn  the  thirty-first    day  of   January, 

1883     the  plaintiff   commenced  an  action  against   the  defendant    and 
others    upon  a  promissorv   note.      It    v/as   alleged    in  the  pet  it  ion  that 
defendants   had   disTDOsed  of  their  property   in  part    with  intent   to 
defraud  their  creditors,    and  a   writ   of  attachment    was   prayed   for 
and   issued,     vjiiich  v/as   placed   in  the  hands   of  the  sheriff   for  ser- 
vice.     The  plaintiff   is   a  partnership,     and   H.   P.    Kirk  and   I-   J- 
Ja-r-k  are  the  individual   members   thereof.      On  the  twenty-eighth  day 
of  August,    1383,     said    I,   R.    Kirk  made  and   filed  an   information 
before  a   justice  of  the  peace,     charging  the  defendant    witntne 
crime  of  uttering   a   forged  promissory   note.   A   warrant    was    issued, 
and  the  plaintiff   v/as    arrested  by  a   donstable  and  taken  to   the 
county   jail.      Ut)on  his    commitment   tc   the   jail,    the  sheriff,    v/ho 
v/as  the  keeper  thereof,    proceeded   to   search  the  defendant 's   person, 
and  took  therefrom  one  gold   watch,     one  silver  watch,     and   $48C    in 
money,     and,    having  the  attachment    and  money  and  property  all    in 
his   hands,     he  made   return  that    he  had  levied  the  attachment    on  the 
wat c 'ii es   and  mo n ey . 

Section  4212  of  the   Code  provides:    "He  who   makes   an  arrest    may 
take   from  the  person  all    offensive   v/eapons    which  he  may   have  about 
his   person,     and  must    deliver  them  to  the  magistrate  before   whom  he 
is  taken,    to  be  disposed  of  according  to   law."      We  do   not   think 
that    an  officer  making  an  arrest    is   precluded  by  this   statute   from 
taking   from  the  person  of  the  prisoner  any  other  property  than 
"offensive   v/eapons".      An  officer  making  an  arrest,    or  a   jailor  upon 
committing  a   person  to    jail,    may   search  him  and  take   from  him  all 
propert3'-   v/hich  might   be  used  by  the  prisoner   in  affecting   an   escape. 
In  Reifsnyder  v.    Lee;    44    Iowa,    ICl,   the  defendant    stole  five  head 
of  cattle,     and  sold  them  to   the  plaintiff   for  $162.30.      The  owner 
of  the   cattle  claimed   and   recovered  them  from  plaintiff,     and  the 
plaintiff  procured   officers   to    pursue  and   capture  the  thief.   The 
officers   making  the  arrest    searched  his   person,     and  took  therefrom 
certain  money,    and  a   watch  which  was   of  little  value.      It    was   held 
that    the  money  and  watch  were  liable  to  garnishment    in  the  hands   of 
an  officer  at    the  suit    of  plaintiff.      In  that    case  the  search  of  the 
person  v;as    fully  approved.      It    is   said,    however,     in  the  opinion,    that 
"a  party  to   a   suit    can  gain  nothing  by   fraud   or  violence   under  the 
pretense  of  process,     nor   v/ill   the   fraudulent    or  unlav/ful    use  of 
process  be  sanctio^ned  by  the  courts.      In   such  cases   parties    will   be 
restored  to  the  rights   and  position  they  possessed  and  occupied  be- 
fore they   were  deprived  thereof  by  the   fraud,  viol  ence  or  abuse  of 
legal    process."      To   the  same   effect,     see  Pomroy  v,    Parmlee,     9    Iowa, 
140,     and  Patterson  v.    Pratt,     19    Id.,     358. 

#e  think  the  sheriff  was    justified    in  making  the   search,     and 
in  taking   from  the  person  all   money  or  proT»erty  v/hich  was    in  any 
way   connected   with  the  crime  charged,    or  which  might    serve  to    iden- 
ViiXjfer?^^^^  ner:      nr-h^rTTF^err^the  she>nr&?-kn€vf~lYiat   the  "witches 
and  money   were   in  no   manner  connected   with  the   crime,     and  that    they 

526  3 


The  Arrest  75 

could   not   be  used    in  any   way  ae    evidence   in  the  prosecution,     we 
think   it    was   his   duty  to    return  then  to   the  defendant.      If  a   con- 
stable or  other  officer  takes   p5>Rsession  of  property   found  on  a 
prisoner,    the  court    wi]  1   order  the  same  to  be   restored,     if  not    re- 
quired  as   a  means   of  proof  at    the  trial,     or  which  does    not    finally 
appear  tc  be  the   fruits   of  the  crime   v/ith  which  he  stands    charged. 
I'Archib.    Crirn.    PI.   and   Pr.,     34,     35. 

In  the  case  of  Heifsnyder  v.  Lee,  supra,  it  is  said,  there 
was  "ample  ground  to  hold  tnat  tns  money  taken  from  Lee  was  the 
money  which  he  had   procured    from  plaintiff   for  the  stolen  cattle," 

In  the  case  at   bar,     it    is    not    claimed  that    the  sheriff  had 
any   right   to   retain  the  money  and  watches    for  any  punpose  connec- 
ted  v/ith  the  arrest    or  with  the  crime   charged.      It    is    claimed, 
however,    that    the   defendant    consented  that   the  sheriff  might   take 
possession  of  the  saise  and   keep  them  for  him.     This    is   denied  by 
the  defendant,     and  there  v/as   a  conflict   of   evidence  upon  tMs_ 
point,  and   it    cannot   be  said  that   the  court    v/as   not    v/arranted   in 
finding  that   the  property  and  money  were  taken  without    the  con- 
sent   of  defendant.      Where  a  party  submits  to    a  search  of  his 
person  by  an  officer,     it    cannot   be  said  that   the  search  was   with 
his    consent,    because  he  makes    no   physical    resistance;    and,     when 
the  search  is    completed  and  the  fruits  thereof  are   retained  by_ 
the  officer,     it    would   require  a    strong   shov/ing  to   hold  that   this 
was    v/ith  the  consent    of  the  prisoner. 

',Ve  think  that    it    cannot   be  said  that   the  search  v/as   unlawfvil , 
But    v/hen  it    ;vas   ascertained  that   the  money  and  property  were   in 
no    way   connected   v/ith  the  offense  charged,     and  were   not    held  as 
evidence  of  the  crime  charged,    the  personal   possession  of  the 
sheriff  should  be   regarded  as   the  personal   possession  of  the 
prisoner,    and  the  money^a^d  projperty_shculd  be  no_  more  liable  to 
attachment   than   if  t hey *^r5   in  tTie  prisoner's   pockets.   To  hold 
othe*rwTse  would   lead  to   unlawful   and' forcible  searches   of  the 
reason  under  cover  of  criininal__proces3,    as   an  aid  to    civil   actions 
for  the  collect  ion'of  debt~s"i      It~~do"es   not    appear  that    such  was 
the  purpose  of  the  prosecution   in  this    case,    but   the   court    was 

1  from 
:s   not 

^    _.    J.. -J. J    --.  any   way   connected   v/ith 

the  crime  charged,  no  advant.a^e^should  be  taken  of  the  defendant 
because  the  same  was  taken  from  his  person  by  force  and  against 
his   will .  ""^ 

Affirmed. 


5263 


7fi 

necjtion  5.  t      ^ 

The  Preliminary   Examination,     and  SuRirnary  Tria^   of 

nonindictable  Offenses. 

(a)   The  preliminar:,-   Examination. 

The  magistrate  must    immediately   inform  the  arrest  ed  person 
brought  before  hip.    of  the  offense  with  which  ^h  person  is 
charged  and  of  his    right_Q.L-cminsel  .    '^hen  counsel    f°^^^^f^^^^f "    . 
dant   appears,    or  v/hen  sufficient   time  for  that   purpose   elapses  the 
magistrate  proceeds   with  the  preliminary   fxaminat  ion.  unless  tnis 
is   waived  by  the  defendant    (5216  and   see  5239).    or  a    -change  of 
venue-'    is   demandednB2r7r  or  proper   cause   for  adjournment    is   shov/n 
(5218  and  5219).   At   this    stage  of  the  proceedings   the  defendant    can 
obtain  a   "change  of  venue",  meaning  here  the  right   to   have  tne  pre- 
liminarv  examination  conducted  by  some  other  magistrate,    by  merely 
filling"  the  proper  affidavit    (5217).   The  purpose  of  the  prelim- 
inary  examination   ic   not   to    establish  the  guilt   of  the  defendant, 
but   merelv  to   d et  ermi ne  v/hethe^Jb here^.  js^siiiXi c i en^_grg,und_to_bina 
Mm_oxeF±GlT5iIgxand_Jury ;    hence  if     his   arrest    was   preceded  by 
the  indictment    no   pr.eliminarv   examination  is   required.    Sufficient 
ground  to  bind  the  defendant    over  to  the  grand   jury   is   found   if 
"it    appears   from  the  examinat  ien  that    a  public  offense,    triable  on 
indictment,    has  been  committed,    and  there   is   sufficient    reason  for 
believing  the  defendant   guilty  thereof"    (5230). 


Cowell   V.   Patterson. 

Supreme   Court   of   Jov/a,  1878.      49    lov/a.      514. 

From  a   judgment    in  habeas   corpus   proceedings,    that   the  plain- 
tiff was   not    improj)erly  restrained  by  the  defendants,    the  plaintiff 
appealed,  '•^  -^ 

Adams,     J .    -    It  *iV  undoubt  edly  the   right-    of  a  person  brought 
before  a  magistrate  for  preliminary   examination  to    v/aive  the   exam- 
ination.     It    follov/s  that    in  such  case  no    examination  should  be 
held.     The  defendant   must   be   considered   as   admitting,     for  the  pur- 
pose of  dispensing  v/ith  the   examination,     and   for  no    .other,    that 
the  testimony,     if  taken,     would  be  sufficient   to    justify  the  magis- 
trate  in  holding   him.     The  petitioner  claims  the  right    in  this   pro* 
ceeding  to    raise  the  question  of  the  sufficiency  of  the  evidence  to 
justify  his  being  held.^    He   relies    upon  section   3482  of  the   code,. 
That    section  provides~that,     in  a  proceeding  upon  habeas    corpus, 
the  petitioner  may  deny  the  sufficiency  of  the  testimony  to    justify- 
the  actio?i  of  t  h^_committ  ing  magj_st  rat  e,     and  that,     upon  the  trial, 
the  testimony  taken  Fefbre  the  magistrate  may  be  given   in   evidence 
in  connection  with  any  other  testimony  which  may  then  be  produced, 

526  3 


f 


Y\' 


77 
The  Preliminary  .■^camiv-t  ioii,    and  Svnmary  Trial   of 
nonindictable  Offsn^ea. 

We   infer  that    the  Judge   who   acted   upon  the  petitioner's   appli- 
cation refused  to   allow  him  to    introduce  testimony   upon  the  ground 
that    he  waived  the  preliminary   exaninaticn.      »/ithout    stopping  to 
inquire  v/hether   it    was   properly   shown  to   the   judge  that    such   exam- 
ination v/as   waived,     we  have  to    say  that,     if   wa i v ed,     wejt jii nk   it 
E ho ul d_not    precljid^- t-h-e~-rTet44ri4i-rier__£rQiiL,a^earlng   upon_fc-6st~irao ny 
in  the_jDip^Cjaedij3g_ji2on_rw^^^as_jCOjpus  .      It    is  true  that    sectl.on 
3482  provides    for  tendering   an   issue  as   to  the   sufficiency  of  the 
testimony  to    justify  the  action  of  the  committing  magistrate.    Now, 
if  the  petitioner  a'drnitt  ed,  by  his    waiver,    that   the  testimony,     if 
taken,    would  be   suffic^^ent,     it   might    seem  that    he  should   not    after- 
ward be  heard  to  ^er  to  the  contrary,      But   the  same   section  pro- 
vides that    other  V^riti  mo  ny  may  bet)  ix>  d  uc  ed  .      So  the   real    question 
to  be  tried    is   ar   to   whether  the  petitioner  oupht   to  be  held,     in 
view  of  all   the  tentimony  t  hat__may_-±ie_  pro  ducked ;    and   it    is    clear 
that    the  petitioner  should  be  discharged,     in  view  of  such  testimony, 
if   it   appeared  that    he  ought    not   to  be  held,     even   if  the  testimony 
taken  simply  before  the  magistrate  showed  otherwise.   The  presump- 
tion agsinpt    him  arit^ing   from  a  waiver  ought    not    to   be  stronger 
than   in  r;uch^   case.      //e  think,    therefore,    that   the   judge   erred    in 
r  ef  us  i  ng  t  c   Hea  r  t  ert  1  mo  ny  . 

Rev  ers  ed  . 


State  V  .    Wise  . 

SuprCL-ie   Court    of   Iowa,    1891.      83  lov/a   596,     5C   N.    ii,    59. 

The  defendant,  liaving  be^  convicted  of  rape,  moved  for  a  new 
trial.  This  motion  has  overruled  and  judgment  v/as  entered  against 
him.     The  defendant   appealed. 

Given,     J.    -    I.      Cn  the  trial      the  appellant    objected  to   the 
examination  of  Bertha  L  ill  abridge  and   '.V.    H.    Cat  on  on  behalf  of 
the  state,     for  the   reason  that    no   minutes   of  the  testimony  of 
either  were  taken  by  the  grand   jury;      that    they  were  not    witnesses 
before  the  grand   jury;    that    no    notice  that    their  testimony   would 
be  taken  had  been  served;    and  that    what    purported  to  be  minutes  of 
their  testimony  v/as    net   taken  by   any  authorized   authority,     and   was 
not   proper  to /toe  considered  by  the  grand   jlijy .   The  objection  was 
overriiled,     .-.nd  the  ruling   is   assigned  as    error. 

It    appears   f>'om  the  record  that   the  defendant    v/as   held  upon 
preliminary  examination,     to  the  grand   jury;    that    upon  the  prelim- 
inary  examination  the   justice  called     Mr,    ,7.    R.    Harris  to   take  the 
testimony  of  the  v/itnepoes;   that    Mr,    Harris   took   it    in  shorthand, 
and   afterv/ards  transcribed    it    in  type-v/rit  ing,     which  copy  the   jus- 
tice certified,    and    retu-»*ned  to   the   clerk  of  the  court    as   the 

52')  3 


The  I  r  el  ir.i  if  ry   E>c£r:i  ."".r  t  io  n,     s  nd    Sujrme  ry  T  ri  ?  1    of 

Mc  nd  ?  ct  e'Rl  e  C  f  f  ens  es  . 

minutec   of  the  t  est  irnc:r.-  tefcre  him   in  the   cese.      Mr.    Harris    v/a.s 
not    RVvorn  to    correctly  take  the  teptincny,     nor  to  the  correctness 
of  the  copy,    fcut    he  te'--tifies   tnct    the   copy    is   a  true  ?tate'~;ent 
of  the  r.inutes  tp.Ice:^  by  hiin.      Section  4293  of  the  Code   requires 
th?t,     "when  &n  indictment    is    found,    the   names   of  all   the    //itnesses 
on  v;hose   e-ridence   it    i?    found  rrust    te   indorsed  thereon  tefcre   it    is 
pre-ented  to   the  court,    and  the  minutes   c^  the   e-ridence  of  such 
witnesses  must   be  presented  with  the   indictment   to  the   court." 
Under   section  4273,    an  indictment    may  be   found    "upon  xhe  r:i-:utes   cf 
the  evidence  i^iven  by   -Afitnesses  befr-^e  the  coiTL"!itt  inj;  magistrate." 
Section  4241    requires   the   examinirig  m'.gistrate  to    write  out,     or 
cause  to   be  v/ritten    out,    the  substance  cf  the  testimony  given  on 
the  exar.inat  ic:i  by   each  "witness    exani  ned  before  hir..    It    is    not    re- 
quired that   the  person  whom  the  nagistrate  nc-j  cause  to    v/rite  out 
the  testimony  shall   be  sworn,    or  tliat    the  r/iinuter   se:Tt    up  by  the 
I'nagistrate   shall   be  verified    L.y  his   oath  or  signed  by  the   witness- 
es.     It    is   the  substance-  of  the  tsstirricay  that    is   to    ..  e  tal:en,    and 
the  magistrate,    having  heard  the  testinony,    may   certify  txi8.t    the 
Txinutep;   thereof  taVen  by  the  person  called  by  him  are  a    correct 
minute  of  tae  substance  cf  the  t  est  iraoriy .   The  minutes   oS  the  testi- 
mony  in  thia   case  were  taken  a^^    authorized  ty  l£v,,    and   sufficiently 
authent  icat  sd  to    authorize  the   grand   jur;/  to    act    upon  t  her;,     and 
to    indors'e  the  nara&^-~vf  these   witnesses   u-cc n  t he  indictment.   There 
was    no    error,    therefore,     in  overruling  the  defendant's   objections 
to   tne   examination  cf  these  v/itnesses.      State  v.    Rodman,     62    lov/^ 
456.  ' 


Cn  another  ground  the  judgment    was   --  Reversed, 


{b;    The   Suinr.iarv  Trial    cf  7cnindict ?T  1  e  Offenses. 

;vp   the   sujTii-cry  tri?l   cf  nonindictable  offense?   ha .3    rathe-^  TJ3-^f^ 
in  corrjron  with  the  ^roiininary   exaninetion  than   it  "has   v/i-^h  the  tria." 
of   indictable  offense,     it    •..'ill   Ve   ccnsidpred   at    this  place. 

If  at    the  pT-elininary   exani nation  it    ar)T5ears   thc.t   a   -p^.r-lic 
offense  has  been  conr.^itt  ed_^which  is   not   triable  on  indiotnent    and 
there   is   sufficient    re-son  for  believing  the  defenaa:.t   guiltv  there- 
of.^t-ie  magistrate   3h«?.ll    order  an  info  niiat  ion  to   be   filed  against   the 
d ef  enda nt    (5237;.    I f  at    i.  h e  o  ut  s  ct    i t    h.?.d  a pn eu r ed  t  hat   t  he  offense 
was   less  than  a    felony,     in  v.hich  tne  lounislanient    prescr^.ed  by  law 
does    not    exceed  a   fine  of  one  hundred  dollars   or   i!nx>riscnrne.it^j;_hi::rty 
days    v5o75;,    tne  proper  procedure  would  have   ueen  to    start,     not     ' 
v;itn  a   cciaplaint    or   "rrelimiicry  information"    (5182;,     bat    with  an 

526  3 


79 
The  Prelimin&ry   Examinst  ion,     and   Suromsry  Trial    of 
ITo  n  i  nd  i  ct  abl  e  Of  Tens  ec 

information,     y ut s c r it ed   and   sv.orn   to,     and    filed    with  a    justice  of 
the  peace    (5576).      lut    the  oiily   difference   in   fact    would  be  that 
the  comTleint    would    ch;Tge  &n   indictable  offense  while  the   infor- 
mation would   not,    becaut^e   it    is   provided  that    the  complaint   myy  be 
•  substan^ -iallv   in  the   form  required    in  criminal    acticns   triable  be- 
fore a    justice  of  the  pesce    (5132.    7cr  the   rem  see   5578).   Thin 
information  when  filed   -.vculd   justify  the   issuance  of  a   warrant    for 
the  arrest    of  the  defc-'ndfint  ,   directed   ir  the  same  manner  as   a 
warrant    of  arre-^-t    upon  a   "p-^eliminery   inforjr'-t  ion",    v/hich   warrent 
may  be  served   in  lihe  manner    (55SC).      The^e   would  be  no   difference 
in  the  arrest   of  the  defendant,    but    when  brought   before  the   justic- 
of  tlio  peace,     if  an  information  hpd  been  filed  a/rai-ist    hi:.i  before 
that   magistrate,     ''the  c'narge  against    him  mui-t    be  di.^tinctly   read 
to  him,     and  he  shaM   be  asJced   whether  he   is   presented  by  his   right 
name,     and  be   required  to   plead"    (5582),     which  he  may  do    "the  same 
as   upon  on   indictment,    orally  or   in  v;riting"    (5583).   Pefore  any 
tes^:imony   is   lieard  the  defendant   j.iay   secure  a   cha:"ige  of  the  place 
of  trial   by   filling  an  affidavit   therefor    (5585   and  5586)and   he  nuy 
demand  a   jur;^*-    (55GV/    which  will    consist    of   six   jurors    (5596).    If 
"the  deferdant    is   acquitted,     either  by  the   justice  or  by  a   jury, 
he  must   be   ir.-imediat eiy  disc:ic.rged"    (5305j;    and    if  he   is    convicted 
he  must   be   infcrmed  of  his    right   to   appeej.   to   the  district    court 
(5612).      li'rcm  the   judT,i.:ent    in  the  distract    court   there   is     the  fur- 
ther  right    to   appeal    "to  the  supreme  court    in  the  Sime  manner  as 
froEi  a   judgment    in  a  prosecution  by    indictment"    (562G).      A   failure 
of  the   justice  of  the  peace  tc    notify  thr   defendant   of  his    right 
tc   appepl    do '^s   not    deprive  him  of  thiA.    right    nor  render  the  judg- 
ment'void,     Jacoby  v.    W^iddell,     1885,     ol    Iowa   247,     16   ^T.    Ji.    119. 


Zrlle  ~ .   Mc^Tenrv 

Supreme   Court    of    Tcv.a,     1879.      51    To.va    572,     2  N.    rt.    364. 

Tilt'  plaintiff  was   arrested   and   trtl<en  I  efore  the  Police   Court 
upon  an   information  chiirging  him  -.vith  the  violp.ticn  of  a    city 
ordinance.    He  first    demanded  a  trial  by   jurv-  and  later  moved   for 
a   chj3.nge  of    venue  b(^th  of  which  were   refused.      Havinf  been  convic- 
ted and   comni-^ted  to      jail    fo->*  n    failure  to   pj.""  his    fine  he  obtain- 
ed his   discharge  under  a    v/rit    of  habeas   corpus.      The  defendants    in 
that    proceeding  appraled. 

Rothroc>2, ±'    ~    !•   There  ore  three  questions   presented    in  this 

record."  T"Hey  are   -   First,    v/as  the  plaintiff   entitled  to   a      jurj- 

trial?   Second,    war:   he   eiititled  tc   a  cliango  of  venue?   and,  third, 

if  the   court    erroneously  denied   either  of  these  all  e^^ed   rights,     vvos 

its    judgment    void,     an;i    w.'o   the  pltintifi    rroiseriy   released   upn 
habeas   co  rpus? 

526  5 


'f 


SC; 
The  PrclirjLi  lary   Exaiiiinat  ion,     and   GuniTiary  Trial   of 
ric  ni  nd  i  ct  ab  1  e  C  f  f  ens  es 

viTe  will    dttenrine  these  questions    in  the  order   i:^.  v/hich  they 
are  :;ti'ted.      The  Const  it  uticn  of  this   State,  in  itn    first   article, 
ccntalnp   these  provisions: 

"Sec.    IC  .    In  all    criminal    pro  sec  ut  ions,  and    i  i  cases    invoivinr: 
the  life  or  liberty  of  an   indi-"-.ldual,    the  accused   shfQi    have  a 
right   to   a   f?peedy  and   public  tria]    bv  an   impartial    jury;    to  be  in- 

tance  of  counsel. 

"Sec.    11.  Ail    offenses   loss  than  felony,    and    in  which  the 
■punishment   does    not    exceed  a    fine  of  one  hund-r-ed   dollarn,    or   im- 
priscnment    ■f'cr  thirty  days,  fjhall   be  tried  ^umTiaril.y  before  a   jus- 
tice o-f  the  peace,     or  o^jher  _off  i.cei^  authori  ie;T~t7y~rav/,     on   infor- 
mation under  oath,     witlTcut'''fndfctrnent,    or  the   intervention  of  a 
gra-nd   jury,     saving  to  the  defendant   the  right    of  appeal;    and   no 
person  shall   be  held  to   annv/er   for  any  higher  criminal   offense,     un- 
less  on  preoentment   or  indictment   by  a  grand   jury,     except    in  cases 
arising   in  the  army  ov  navy,     or   in  the  militia,     v/hen   in  cictual 
service,     in  time  of  v/ar  or  public   danger." 

Municipal    corporations   have  power  to   make  and  publish  ordin- 
ances,    and  to    enforce  obedience  tnereto   i^y   fine  not    exceeding  one 
hundred  dcllars,    cr  by   imprisonment    not    exceeding  thirty  days. 
That    a   violation  of  an  ordinance',   of  this    character   ie   an  off-Biise 
lesr   than   felony   v/e  think  mupt   be  conceded.    True,     it    is   not    an 
offense  againft    an  act   of  the  Legislature,    but    it    is   a   violation 
of  a  valid    enactment   made  in  pursuance  of  lav/,    and  the  punishr.ient 
is    in*"licted  "cy  authx)rity  c^  the  L3gi.slature.      These  constitution?^! 
provisicn^;    crnnot   be   evaded  by   imposing   fines   and   imprisonment    upon 
the  citisen  through  ?:-.  intervening  agency,  such  as   a  mimicipal    cor- 
poration.     But    oho  plaintiff  was   not    entitled  tc   a   trial   bv  Jury 
by  virtue  of  the  provisions   of  the  Constitution,    because  article  1, 
9  11   pro-ider-   that    all   offenses    in   which  the  puni.ihrient    does   not 
exceed  one  hundred  dollrrg,  or  thirty  days    Impriscnmrnt.     shall   be 
tried   summarily  before  a   justice  of  the  t>eace  or  other  officer  au- 
thorised bv  l-?v:;     saving  the     defendait      the  right    of  af  peal  ,   Ey 
sa-"-ing  the  right    of  arspeal  tc   a   court    where  the  defendant    may  de- 
mand thai    he  be  tried  by  a   jury,    the  provision  ir   consist'-nt"  v;ith 
article   9  of  the  ^;.ill   c  f  p.lg}ito,    which  declare?  that   the  ri-'n-,   of 


lie  c^rr  next   tc    inquire   v/hether  ^.he  pl:;intiff   wao    entitled  to 
a  trial  by  juiy,  by  virtue  of  a^iy  sta-.ute  law.   The  ar.'uraent   that 
there  IS   statutory  auf^ority  for  a  trial   by   jui^   in  a  police  court. 
for  the  vioaai:ion  o<--:i  city  crdinan.-;^.     U;  based   upon  inference  and 
not    upon  any   express   statute ry   enachiient . 

5263 


81 
The  Preliminary   Exarninat  ion,     and   Sunmjry  Trial   of 
No ni  nd i ct  abl  e  C f  f  ens  ^s  . 

The   city  of  Des   Moines    is   a   city  of  the   first    class,     and  by 
section  535  of  the   Code   there   is    established    in   such  ci'Lies        a 
Police   Court,      ly   section  545  it    is   provided  that    "the  police   judge 
shall   have,     in  all    criminal    cases,  the  pov/ers   and   jurisdiction  vest- 
ed  in  the   justice  of  the  peace, and   shall    have   juris- 
diction of  all   violations   of  the  ordinances      of  the  city."      By 
section   543    it    is   pro--1ded  tliat   the   cit}'-   council    shall   provide  by 
ordinance  for  the  selection,     summoning  and    iint>anelin?  of   juries    for 
the  Police   Court.      It    is   provided  by   section  4672  that    in  a  trial 
of  a   criminal    case  before  a   justice  of  the  peace  the  defendant   may 
deraand  a  trial  b;,'-   jury.      i!lo   such  provision  is   anywhere  contained   in 
the  statute   reguiating  proceedings    in  the  Police   Court.      It    dees    not 
follow,    because  a   jui^'   is   provided   for  the  Police  Court,    that    a 
trial  by   jury  may  be  demanded   for  the  violation  of  a   citj'  ordinance. 
The  jurv  must   be  hold  to   have  been   intended    for  the  trial   of   cases 
in  the  Police   Court    v/hcn  authorised  by  lav/;    that    is,     v/heri  the  court 
is   exercising  the  powers   and   jurisdictions   of  a    justice  of  the  pec.ce 
in   criminal    cases.   This    jurisdiction   embraces   offenses   against    the 
laws  of  the  ntcte,  in  w-^ich  a  party    is   entitled  to  a  trial   by  a   jury 
of  six  men,    as   provided    in  section  4677  or'  the  Code.    Exercising  the 
powers   and   jurisdiction  of  a   justice  of  the  peace   in  criminal    cases 
does    not    include  im.paneling   juries   for  the  trial,  of  violotions  of 
the  ordinances   of  the   city. 

An  ordinance  cf  the  city  provided   that   any  person  havin:;  been 
brought   before  the  Police   Ccurt,     upon   information  or  otherwise, 
shaxl   j-i.-ive  the  rif]:ht   to   dem-'Uid  a  jury.    It    is   scarcely  necessary 
tc    say  that    the  ordinance  could   confer  no    right    not    authorized 
by  statiAte.    In  other   words,     if  the  statute  confers   jurisdiction 
upon  the  police   Court    for  the  trial   of  offenses   against   the  ordi- 
nance of  the  city,     and   does   not    provide  for  a  trial  by   jury,  the 
city   could  not   by  ordinance     confer  such  right. 

If/e  are  unable  to    find  an.y  statutory  authority  for  a   trial 
by   jur'/-   in  a   Police  Court    as   organized   under  our  lav/,     and   conclude 
that   the   coui-t   properly   refused  the  demand   for  a  trial  by  that 
method. 

II.   A   change  of  venue,    or  as    it    has  been  more   recently  denom- 
inated a   change  of  the  place  of  trial,     is   purely  of  statutory 
origin.      It    iu.s    no    recognition  in  the  common  lav/.    If  the   right   there- 
to   exists    it   must    Tr.f    found   ir>  the  statute,    and  here   we  have   ao 
statute  authoriaiiig   ^   change   from  the  Police   (Jcurt    in  a   crim'nal 
prosecution   for  a   violation  of  r    city  ordinance.      It    is   claimed  that 
the  venue  should  have  bee">   changed  to   a   just  ice  cf  the  peace,     not 
because  there  is   any  exT)res3   statutory  authoritv  therefor,    but 
because   it    is   provided    in  section  4707  that    proceedings    in  police 
and   city  courts,     i::   crimina..    cases   v/ithin  their   jurisdiction,    shall 
be  rogul-'ted  by  t^e     p-ovisions   of  the   Code,     when  not    oLh'-rrwise 
regijlated  by  lew.      The  arg-jnent    is   that   the  -oroceedings   should  be 

526  ;i 


The  Ireliiuinary  Examination,    and   Summary  Trial    of 

Honiiidictabl  e  Offenses 


82 


the  same  as  Ltfore  a   jutjtice  cf  the  peace.       It    is   true  there  are 
provisions   cf   the   Code  upon  the  subject   of  tne  change  of  the  venue 
cf  actions.      Some  of  these  provisions   are  applicable  to   civil    ac- 
tions,   others   to    criminal    cases,     and  some  apply  to    courts  of   record 
and  others  to    inferior   courts;    but   there   is   no    warrant    for  the  claim 
that   the  proceedings   of  any  one  court    should  be  adopted   rather  than 
another.    In  this   state  of  the  law  it   must   be  held  that   the  pro- 
ceedine:s    refer-^ed   to   could   not    have  been   intended  to    embrace  proceed- 
ings   for  a   chanpre  of  venue. 

In  Jacquith  y ._   Royce.     42    Iowa,     406,     it    was   held    "the   juris- 
diction of  mayors   of  cities   and    incorporated  towns   over  perscns 
guilty  of  viol.-iticns   of  municipal   ordinances    is   not    exclusive,     and 
a    justice  cf  the  peace  may    issue  a   warrant    for  the  arrest    of  one 
charged   wHh  such  offense,     and  detain  him   in  custody   till   the  day 
of  trial."    It    is    contended  by   counsel    for  ap-nellee  that    under  this 
rule,    the  jurisdict  ion  bei -;g   concurrent,     a   change  of  venue  mig-^t 
prOTDerly  be  demanded   either  before  a    justice  of  the  peace  or  a  mayor. 
But   the  section  cf  the  statute  construed    in  that    case   is   applicable 
only  to    cities   of  the  second    class   and   incorporated  towns.      The 
Police   Court    in   cities   of  the    first    class'  is   another     tribunal, 
created  by  different    and   distinct    sections   of  the  statute.    In  the 
case  of   French  v.    Ifervin,     46    Iowa,     584,     it    was   held   that    a   change 
of  venue  may  be  taken  from  the   court    of  a  mayor  of  a   city  or  an  in- 
corporated town  to   that   of  the   justice  of  the  peace.   The  opinion  is 
based   upon  section  506  of  the   Code,     which  provider;   that   the   rules 
of  law  regulating  proceedings  before  a   justice  of  the  peace  shall 
be  applicable  to   proceedings   before  such  mayor.      This   section  has 
reference  to   mayors   of  cities   of  the  second   class   and    incorporated 
towns,      lio    reference   is  made  therein  to    police   courts,     which,     as   we 
have  seen,     are  a  separate  and  distinct   tribunal.   There   is   no   pro- 
vision of  law  requiring  the  proceedings    in  the  police   Court   to   be 
regulated  by  the  Isv/  applicc.ble  to    justices   of  the  peace.    It    is  true 
certain   jurisdiction  is' conferred  upon  them,  concurrent    with  justices 
of  the  peace,    but    pow'->r  and   jurisdiction  are   essentially  different 
from  the   form  of  procedure. 

V/e  might    have  disposed  of  this    question  in  a   very  summary 
manner  by   simply   follo\;ing  the  rule  of  The  State^of   Iowa  v.    1^1  i^^". 
ante,     133,     //h j  ch  holds   that    the     overruling  of  a  motion   for  a      change 
of  venue  from     the  court   of  a  mayor  to   a   justice  of  the  peace 
worked   no   substantial   prejudice  to   the  party   charged,  since  he   is 
allowed   a   new  trial    upon  the  me-^its    in  the  District    Court,    and  that 
the  onlv   remedy  to    correct   the   error  was  by  appeal.   But    we  have 
thought' the  public    interci'ts   demand  a   settlement    of  the  practice 
based   upon  a   construction  o^  the  statutes,     and  our   investigation 
leads   us  to  the  conclusion  that   the  motion   for  s    change  of  venue 
was   prcperlv  overruled, 

" 5J!6  3  , 


83 
The  Preliminary  Exani  nrt  ion,     and   Summery  Trial   of 
"o  ni  nd  i  ct  ab  1  e  Off  ens  es 

III.   That    the  police   court   ht.d   jurisdiction  of  the  suLject- 
raetter   -   that    is,     vicl&tioa  of  the  ordinance  o ;;  the  city   -   and 
that    it    had   jurisdiction  of  the  person  of  the  party   charged    /dth 
such  violation,    and  that   the   judgment    rendered  by  the  coui-t    was 
such  as    '.vcxs   t.utho  rased  by  ti:e  ordinance,    must    all    be  conceded.   The 
judgment    was,    tnerefore,  not   void,     and  habeas    corpus    will    not   lie 
to    correct    errors   of  a   court    having   jurisdiction  on  the   oubj'.-ot- 
matter  and  the  person   charged.      If  the  court    had   jurisdiction  of 
the  case,     "rnfre   irregularities  or   errors   of   judgment    in  the 
exercise  of  that    jurisdiction  must  be  disregarded  on  this    v/rit, 
and  must   be  corrected  by  the   court,    issuing  the  process   or  on  regula: 
appellate  procedings."    Cooley's    Const.   Limitations,     347. 


Reversed. 


■P^ 


St.'.te  V  .   Sipult  . 

Supreme   Cou-^'t    o^   Ic-«a,    1S64.   1?    Iowa   575. 

Lo v/e,     J .    -    Information  for  petit   larceny  upon  which  the 
defendant    wras    convicted.      rle   relies,     ir>  this    court,     upon  the   fcllr-.v- 
i  nfT  po  i  nt  s  : 

1.  That   the  cri.^inal    information  is   defective,     in  not    charging 
that   the  larceny  had  1- cen  feloniously  ccnmitt  ed  .^he  language  of 
the   accusaticn   is    in  the   wo  i-ds   of  the  statute    (    (4237),     that    the 
defende.nt    dia  steal,     take  and   carry  away,     (Sic.      This    is   all   that 

is   required   in  an   informat  iontr^o  re  a    justice  of  the  peace.      The 
information   in  tnis   case   in    fully  up  to  t'le  renuirements   of  the 
statute,  and  very  well    drawn. 

2.  Thc.t    the  magistrate  had   no    jurisdiction  to    try  the  cause, 
for  the  reason  that    although  the  property   said  to  be   stolen  was 
worth  less   than  twenty  dollars,     it    was  taken,     i  f  at    all,     in  the 
night    season,     from  the  stable  of  the  prosecuting   witness,     and  the 
offense  -was  therefore   indictable.      The  wxsrds  of  the  statute    (    |4238) 
are:    "if   any  person   in  the  night   time,     commit    larceny   in  any 
dwelling  house,     store,  or  any  pubic  or  private  builidng,"    &c .      It 

may   well   be  doubted   whether  a   stable  falls   under  the  description 
of  building  above  desirnat^d. 

The  charge   in  the   information   is   not   thf^t    the  larceny  was 
committed    in  the  ni'^ht    time  from  a   stable  or  ether  buildin^?,    but 
thc,t    the  defendant    stole,    took  and   carried  away  a  set   of  harness, 
the  property  of  the  prosecuting   witness,    on  a   certain  day.    It    is 
only   f'rom  thr-  evidence  that    we  learn  that    it    occurred   at    night    and 

52  o  3 


84 
The  Preliminary  Exami  net  ion,  and  Summary  Trial   of 
Nonindictable  Offenses. 

from  a   stable.      There   is    nothing  therefore  appearing  affirmatively 
on  the  face  of  the  proceedings  that    shows   a   want   of   jurisdiction; 
and  the  defendant    is    not    to   be  heard  to   allege,     under  such  circum- 
stances,   that    he  has    not   been  prosecuted   for  the  greater   instead 
of    the  lesser  offense. 


Affirmed. 


State  V.    £itman. 

Supreme   Court    of    Iowa,     1862.    13    Iowa   485.  ^ 

Ealdvnn,    C.    J  .   -  The   information  upon  v/hich  the  defendant 
was    arrested,     tried   and   ccnvicted,  charges   him  with  cruelly  and 
inhximanly   whipring   and  beating  his   own  child,     being   about    three 
years   old. 

A  demurrer  to   this    information  was    filed   in  the  justice's 
court    presenting   several    objections   tc    its    sufficiency,     only  t  vvo 
of  y/hich  we  deem  it    important    to    consider:    first,    because   it    did 
not    charge  the  public  offense  of  assault    and  battery;    second,    be- 
cause the  name  of  the  person  upon  whom  the  offense   was   said  to 
have  been   comr>iitted      was    not    given. 

This   dP-nurrer  v/as   o-'-erruled   cv  the  justice,    and  the  bill   of 
exceptions   shoves   thrit    upon  appeal   the  same  objection  was  made 
and  overruled   in  the  District    Court. 

The   information  is    not   objectionable  upon  the   first    ground 
named.      The  language  used   is    sufficient    tc    indicate  that   the 
offense  had  been  cornmitted.      It    is   not    required  that   the   informatio: 
should   state   in  so   many  words   thatthe  defendant    was   guilty  of  the 
offense  of  an  assault   and  battery. """^    Tt    is  t'i^jc  rigiit_^f  a  pareii^  to 
chasL'lbi'b   hlb   child,  latr^nen  such   chastisenent    amounts   tc    cruelty 
or   inhumanity,    or  where,    as   the  court   belov;  charged  the   jurj'',    the 
parent   or  master  goes  beyond   the  liue  of   reasonable  correction,     his 
conduct   becomes  more  or  less    criminal. 

Cruelly  and   inhuraanly   whipping   implies   an  unlav/ful    and   will- 
ful   assault    and  battery.   Any  words   used    in  the   information  which 
substantially  and      plainly   set    forth  the  acts   of  the  defendant    whi'tl 
arcount    tc   an  offense,     are  sufficient. 

The  second   objection   is,    that    the  name  of  the  -oerson  upon  whom 

5265 


85 
The  Prelimisry  Exaninet  ion,    and   Suncnary  Trial   cf 
-    nonindictable  Offenses 

the  offense   vvas    committed   is    not   given.      This  omission   renders   the 
information  defective.      It    v/ould,     without    dcutt,     invalidate  an 
indictment,     if  the  State  should   fail    to    allege  therein  upon  v/ioom 
the  offense  had  teen  committed. 

The   form  of  an   information,     as   given  in      J5C58.    cf  the   re- 
vision,    seems   to   contemplate  that    the  act   or  omission  constituting 
the  offense   vath  the  venue  and   names   and  date,     should  te  stated 
with  as   m^uch  precision  as    in  an   indictment.      The  defendant    should 
te  advised  of  the  name  of  the  person  upon  whom  the  assault    has 
teen  committed,     so   that    he   can  prepare  his   defense  accordingl;^. 

The   information   should  he  so    specific  that    if  the  defendant 
is   so   convicted     or  acquitted  he  could  plead   such  conviction  or 
acquittal    in  tar  of  any   further  prosecution   for  the  same  offense. 

Reversed  . 


Tov/n  of  Eayard  v.   Eaker. 

Supreme   Court    of    Iowa,     1888.      76    Iowa   22C,     4C    IT.    W.    818, 

The   defendant,     slaving  teen  convicted    in  the  mayor's    court 
of  the  violation  of  an  ordinance  of  the  town,     appealed  to   the 
district    court.      From  a   judgment    of   conviction  there  he  appealed 
tc   the  suprem.e   court  . 


Seevers, 


VII.   The  ordinance  pro '.-ides    "that    any  person,     who    shall    stand 
any   jack,     stallion,     or  hull,    or  try  tc   let    any   jack,     stallion, 

or  tull,    tc    any  mare  or   cow,    u.iless   within  an  inclos- 

ure  so   arranged  ae   to   otstruct   the  putlic  view,  and   in  such  place 
as   tc    prevent   the  noise  thereof   from  disturting  the  putlic   or  pri- 
vate  families  or  persons    within  the  tovm  ,"   he   should  te  punished 
as   prescrited    in  the  ordinance.      The  ordinance      introduced    in 
evidence  was   designated  as    "IIo .    21,"    and  the   information  was    en- 
titled,    "The   incorporated  town  of  Payard  v.    Frank  Baker,    hefore 
Thos  .    Stevenson,    mayor  of  the  incorporated  town  of  Bayard,     county 
of  Gu7:hrie,     and  state  cf   Iowa,  "   and    it    proceeded  to    state  that    "the 

defendant    is   accused  cf  the  crime  cf  violating  ordinance 

No.   21,     for  that   the  said  defendant,     at   the  tcwi  of  Bayard    

did, agajnst    the  peace  of  the  st-at  e  of   Iowa,     and   con- 
trary to   the  provisions   of  ordinance  Ho  .   21,     entitled    'An  crdinence.' 

....'. passed  the  t  wenty-f irst    day  of  March,     A.    D.    1888,     in 

such  cases   made  and  provided,     and   against    the  jiesce  and   dignity  and 
good  order  of   said  tov/n  of  Bayard."      It    is   otjected  that   the 

5263 


86 


The  Preliminary  Examiation,    and   Sur.Tr.cry  Trial    c: 
nonindictable  Offenses. 


information   is    .-Insufficient 
cr  -^vhat   tovvn  cr  citv  -oessed 


because   it    does    not    appear  thst    any 
the  ordinance.      It    is  true  that    it 
dees    net    so    arriee.r   in  exTjress    words,    yet    v/e  think  t  heinfcrmat  ion 
is   cleerly  sufficient.      Pr^y  person  of  ordinary  understanding, 
reading  the   infcrmaticn,     v/ould    readily   reach  the   conclusion  that 
the  defendant    wes    che.rg-ed   v/ith  violst  5  ng  ordinance   lie.    21,    passed 
by  the  incorporated  town  of  PaT'-ard  .  The  same  strictness    is    not 
re'^uired   in  an  inforr\at  icn  for  violating   an  ordinance  as    in 
indictment    (l    Dill.   Hun.    Corp.    sec.    414;;    a.nd   -^e   incline  tc 
'■''""  ■  ■         ■      sufficient    under   Code,     section  43C5. 


an 
think 


the   information   i; 


stallic 
same  be 
doing  t 
do  es  no 
being  t 
a  stall 
stitut  e 
which   i 


II.   The  standing,     or  letting,    cr-trj^^ing  tc   let,    any   jack, 
n,    or  bull   to   any  mare  or  co-.v  is    net   prohibited,     unless  the 

attempted  at   an  improper  place.   The  of Tense  consists    in 
he  prohibited  act    at    such  place.    Therefore  the  information 
t    charge  tv/o   offenses,     and   is   direct    and   certain;    the  c 
hat   the  defendant    "did  tiien  and  there  let    or  try  tc  let 
ion  serve  a  mare,  "    for  the  reason  Lr.at    such  acts   do    not    con 

any  offense  unless   the  same   v/^£_dcne  at_a__nj:ohib44^d   r>l 
is    not    claimed    is    not   properiy 


large 


do 

ce, 
informat  ion. 


IX.   There  are  other  objections     made  to   the  information  of  a 
similar   character,     none  of  vvhich,     in  our  judgment,     are   well   taken. 
All   the  r>oints   m&de  by   counsel    pre   exceedingly  t  echnical,  and   v/ith- 
out    substantial   merit.      It    is   also   said  that    the  verdict    is   not 
sustained  by  the  evidence.    .Ye  think  dif f erentlj^-. 

Affirmed. 


Baurose  v  .    Stat  e. 


Supreme   Court    of    Iowa,     1855,     1    Iov;a    574, 


The  defendant,  having  been        convicted  by  a   justice  of  the 
peace  on  a   charge  of  unl a v/f ul>y   s el  1  i ng  liquor,     appealed  to  the 
district    court    which  aff irm.ed  ifhe-  judgment    of  the   justice,     on 
motion,     and  denied  the  defendant's  motion   for  a    nev/  trial.      The 
defendant    then  took  the   case  to    the  Suioreme   Court   on  Virrit    of   errc: 


Isbell. J.    -   The   first 

resolve  themselves    into  the 


trict    Court 
as   the   waiv 
appears    that 
either  party 
where  a   jury 


and   second   specifications   of   error, 
sam.e  question,    viz;    v/hether  the  DiS' 


?rred1nr£f^JPij2iL-t-  ■''  ^  -4g  ^  e  ^"ida:;t    a  trial 
""of   t.^iatr  right    Idv   thedefendaat    i 
tile   question  propounded  by  the   court, 
desired  a   jur}',     was   asked  at    a   stage  of 
could  take  nc    part;    that    is  to    say, 

5263 


by 


jury?   So    far 

concerned,     it 
viz:    whether 
the  cause, 
on  the  hearing  of 


87 

The  Ireliminary   Examination,     and   Summary  Trial   of 
Nonindictable  Cffenses. 

a  motion.      We  cannot,     therefore,     consider  the  defendant's    right 
to  be  tried  by  a   jury  as   vraived  by  him;    and  if  he  v/ould  be   en- 
titled to    it    on  other  ground,     it    should   not    now  be   refused  him. 

The   question  whether  he  was   or  was    not    entitled  to    such  trial, 
involves    a   construction  of  s.ections    5 558__and__336 1.  of  the   Code, 
as  to    what    is  the  duty  of  the  District    Court,     when  an  appeal    comes 
before   it    from  the  trial   of  a   justice  in  case  of  a  misdemeanor, 
on  the  alleged  ground  that    the   evidence  did  not    justify  the   con- 
viction.     And  on  this   point,     we  should  have  little  hesitation  in 
pronouncing,     were   it    not,    tiiat    a   construction  has   already  been 
given  to   this   statute,     in  this   particular,    by  the   former  bench, 
which  we  are  unwilling  to   adept. 

In  Kuner  v.    The   State,       decided  at   the  December  term,     1854, 
Hall,     J.]     in  delivering  the  opinion  of  the  court,     says;.  "  v/here 
a  party   charged   with  a    criminal    offense,     appeals   upon  the  alleged 
ground  that    the  evidence   would   not    justify'the  conviction,     he  is 
entitled  to   a   trial   de  ncyo      in  the  District    Court."    If   it    is  meant 
by  this    (which  the   case  there  seems   to    indicate),    that   the   defen- 
dant,    on  an  appeal    from  a   justice  of  the  peace,     on  the  trial   of  a 
misdemenaor,    on  such  alleged  ground,     is    entitled  to   a  trial    de  novc 
in  the  District    Court,  as   a  matter  of  ccmmcn   right,     in  the  absence 
of  all    showing  that    the   evidence  on  the  trial    was    insufficient   to 
justify  the   convicticn;    or,     in  other  words,    that    when  the   appeal 
is  on  that    alleged  ground,     in  the  absence  of   such  shovdng,    the 
District    Court   has    not    the.  right   to    deny   such  trial,     we  cannoc    con- 
clude that    such   is   the  meaning  of  the  statute. 

It    is    clear    from   section   3361,    that    the  appeal    addresses 
itself  to   the   court    in  the   first    instance,     and  that   a   judgment   of 
the  court    is    contemplated,    before  a   nev/  trial    can  be  had.      The 
language,     "may  order  a    new  trial,  "    co  nt^mpl  at  es   a   right_tjD__ref  us  e 
such  trial.      ITo   distinction   is   made  by  the  st at iITeT'^on  account^  of 
tH^~g-rcmnd      of  appeal,     as   to   whether   it  be   for   error   in  matter  of 
law  or  fact.      Section   3358,     contemplates    in   case  of  an  appeal,    that 
an  affidavit    shall   be  made  stating"  the   facts    showing  the  alleged 
errors,     a   rec^ui-^ement    which   would   seem  unnece'sf^ary,     unless   tc    use 
in  the   court    above,     to    info .m  the   court   of  the  probable  ground  of 
error   in  fact  . 

The  language  of  these  two    sections    entire,     is   as    follcv/s: 

"Sec.    3358.   The  defendant   may  appeal   to   the  next    term  of  the 
District    Court,     if  on  the  rendition  of  the   judgment,    he,    or  some 
one   for  him.    make  or  cause  tc   be  made  an  affidavit   stating  the  facte 
showing  the  alleged    errors    in  the  proceedings   or  conviction   com- 
plained of,     and  that    he  verily  believes   that    injustice  has   been 
done." 

5263 


36 
The  Irelirrdnury  Sxar.inat  ion,    and  SuKirnary  Trial   of 
:To  ni  nd  i  ct  abl  e  C  if  ens  es 

"Sec.    3561.   nfter  hearing  the  appeal,     the  court    sliall   give 
judgment    without    regard  to  technical    errors   or  dei''ect3,     which 
have   not   prejudiced  the  substantial    rights   of  the  defendant,     and 
may   render  such  judgKeiit    as   the  magistrate  should  have   rendered, 
or  Eiay,    accordirxg  to   the   justice  of  the   case,     affirm  or   reverse 
the   judgment,     in  v/hole  or   in  part,     as   to   all   or  any  of  the  defen- 
dants,    if  there  be  more  than  one,    or  nay  order  a  new  trial." 

The  language  of  the  latter  section,     is    i*^-  substance  the  same 
as   that    in  sections    2C97  and    3C98,     prescribirig  the  duty  of  this 
court,    on  the  hearing  of  a   writ    of   error  to   the  District    Court. 
The  language  there  used   is,     "must   gi-"'e   judgment    without    regard  tc 
technical    errors   or   defects,     which  dc    net    affect   the  substantial 
rights   of  the  parties.     I'.ay   reverse,     affirm,    or  modif:--  the  judg- 
ment   of  the  District    Court,     or  rray,     if  necessary,     order  a   new 
trial.''   Yet,     if  v/e   v,-ere  to    attempt   to   adept    the  doctrine   in  this 
court,    that    if  the   error   conplained  of  v<ias,    thet    the   evidence  did 
not    justify  the   conviction,    the  defendant    v/ould  be   entitled  to    a 
trial   de  novo,     v/ithout    sho.ving  probable   error   in  fact,     it    wouli 
at    least   be  considered  unsound. 

But    it    is    said,    that    tc    refuse  a  trial   de   novo,  violates   the 
right    of  trial  by   jury;    that    when  the   constitution  says,    that    in 
all    crimin?-!   prosecutions,     the  accused   shall    ha-re  a   right    tc   a 
speedy  trial   by  an  irr.partial    jury,    thi?  neans   a   common  law  jury 
of  t v/elve  pen.     This,    perhaps,    might   be  true,     were   it    not    also    for 
the  provision  of  the   constitution,    that    the  General   Assembly  may 
a'jtthorize  trial   by  a   jur^'-  cf  less    number  than  tv/elve  men   in   in- 
ferior courts.      It    is   sufficient    that   the  accused   y/as   tried  by   a 
constitutional    jur:,'.     To    asst^me  that    no   offense  may  be  tried  by  a 
jury  of  a  less   number  than  tv.elve,     would  be  to   oust    justices   of 
the  peace,     as   the  lav/  new  stands,    of  all    jurisdiction  in  such 
cases;    for  being   inferior   courts,    the  statute  confers   their  powers, 
and  as  there   is   no    authority   for  their   summoning   a  juay  of  twelve, 
and  as   the  accused   is    entitled  tc  be  tried  by  a   jur;/,     the  trial 
of  any  given   case  b;v  a   justice  might   be   entirely/  prevented  -   an 
extremity   in  which  we  see  no    need  of  being  placed.      As    ^ue  under- 
stand the  statute,     it    is  the  duty  of  the  District    Court,    on  an 
appeal    in  such   case  coming   up,    to    first    inquire   into   the  case  made 
bv  the  appellant,     and   dete-^nine  whether   error,     prejudicial  to   the 
substantial    rights   cf  the  defendant,     e:!j:i3ts.      In  this    inquiry,    the 
presumptions   are   in   favor  of  the  correctness   of  the  proceedings.    If 
the  defendant    fails  to   show  probable   error  before  the   justice,     it 
is  the  duty  of  the  court   to    affii-m  the   judgment.      If  the  alleged 
ground  of  appeal    is,    thtt    the  evidence  did   not    justify  the   con- 
viction,   the  defendant,     either  by  ":is   affidavit,    made   for  the  pur- 
pose of  appeal,    or  by  bill    of   excerticns  taken  on  the  trial,     should 
bring  the   ei'idence  so  before  the   ccurt,    as   to    render   error  at    least 
probable;    and   in      case  he  does    not    dc    so,    the  court    should   affirm 
the      judgment,      "or   is   there  any  :iardship   in  requiring  this,     the 
accused  being   entitled  to    counsel. 

5253 


89 
The  preliminary  Examination,     and   Summary  Trial   of 
nonindictable  Offenses 

■Regarding  the  duty  cf  the   court    in  this  light,     let    us   turn  to 
the   case  before  us,     and   see   if  the   defendant   made  such__a— g-he^ng 
of  probable   error   in  fact,     as   to    renS'er   it^  error   in  the   court    to 
reftrS'eTrim  a   new  trial  .      From  the  whole   record,     including  the  affi- 
davit   for  appeal,     v/e   conclude  that    the   insufficiency  of    evidence 
complained   of  as    error,     is    in  this,    that   the   evidence  did   not 
justify  the  jurj,-   in  c'oncluding  that   the  liquors   sold   v/ere   intoxi- 
cating".     The  affidavit,     v/hich   is   all   the   evidence  on  that    point,     is 
as    follows:    "Dr.    Fairffeld    came   in  and   called    for  brandy,     and  5. 
M.  Phelps    called    for   run;    that    Dr.    Fairfield    poured   out    of  a 
bottle   what    locked   like  brandy,  into   a  glass,  and   drank   it;    and  that 
the  said   phelps^poured  out    of  a  bottle   into    a   glass   something,     and 
drank   it,     and^t^?"  the  bottle  was   labelled    'RaTi;  '   and  this    v/as   all 
the  knowledge  of  said   witness   that_  eit^ier  cf  the  liquors    drank  by 
said  Fairfield  and  Phelps,     was    intoxicating  liqi^r." 

Under  this   state  of  thR   pvijgr,r.p,    -disclosed  by  the  defendant 
in  his   affidavit,     v/ithout   more,     as  that    Fairfield   or  Phelps   ob- 
jected,    that    what    was   given  them  v/as   not    that    which  they   called 
for,     or  something   at    least    ieadin^to    b.   conclusion  in  this   direc- 
tion,    we  think  there   is    not    ground   for  a   reasonable  dcubt   but   that 
they   drank  thst  which  they   called   for;    or,     in  other  words,     that   the 
liquors    sold  were   intoxicating  liquors,    to-wit:   brandy  and   rum. 
vVe  therefore   conclude,  ^thgt    there  v/as   not    probable  ground  cf   error 
on  the  part   of  the   cour?    in  affIrmihg~The~jTidgment  . ■ 


So    much  of  the   judgment    as   affirmed  the   judgments   of  the 
justice  was   affirmed   -  another  "cart   of  the  judgment    was    reversed. 


State  v.   Valure. 

Supreme  Court    cf   Iowa,    1895.      95    Iowa   401,     64   IT.    V/.    2SC . 

Hobinson.     J .   -    

The  grounds   of  the  motion  to   dismiss    filed    in  the  district 
court    were   not    the  sane  as   the  one  rcaSTC^in   justice's    court,    and 
the   record   does    net    showcl^rly  that   the  allegations   of   fact 
upon  which  the  former   is-Tiased  are  true.      By  treating  their,  as  true, 
and  the   questions    raised  as   properly  presented    in  the  district 
court,     we  must    hold  that   the  motion  v/as    rightly  overruled.      The 
correctness   of  the   ruling  must 'be  determined  by  the  law  of  this 
state.      The  alleged   errors   which  were  cornmitted   in  ju^TTice^s   court 
were   not    of  a   character  to   affect    any  substantial    right    of  the 

5263 


Th'e  Preliminary  Examination,    and  Sximmary  Trial   of 
Nonindicvatl  e  Offenses 

defendant.      Section  47C2   cf  the   Code  provides  that    Yjheri  an  appeal 
is  taken   froiTi  a    justice's    court    in  a   criminal    case  the   cause 
appealed   shall    stand   for  trial    anev/  in  the  district    court    in  the 
same  manner  that    it    should   have  been  tried  before  the  justice,     v/ith- 
out    regard  to   technical    errors   or  defects   v/hich  have   not   prejudiced 
the  substantial    rights   of   either  party.      The   next    section  provides 
that    no   appeal    from  a   justice's   court    shall    ce  dismissed.      Under 
these  provisions   the  alleged   failure  of  one  of  the  justices   to   make 
proper  and  timely   entries   had   no    effect    upon  the   rights  of  the 
parties   after  the  appeal   to  the  district    ccuro    was   taken.      The  au- 
thorities   cited    in  support    of  the  claim  of  the  appellant    on  this 
branch  of  the  q^se  are   from  other   states,    and   relate   chiefly  to 
civil    cases.       ^ 


Affirmed, 


Tovm  of  Lo villa  v.    Cobb. 

Suprerie   Court    of   Iowa,     190 5.      126    Iowa   557.    102  II.    v/.    495. 

The  defendant    appealed  to  the  district    court    from  a   conviction 
before  a  magist r,^e_on  a    charge  cf  violating   an  ordinance  of  the 
plaintiff  tovvn.  ^^'demurrer,     filed  by  the  defendant    in  the  district 
court,     wa?   overruled  after  the  plaintiff  had  been  permitted  to    file 
an  amendment   to   the   information.   The  defendant    v/as  then  tried   and 
convicted,    and   from  the  judgment    of  conviction  he  appealed. 

I^'    Deemer,     J.    -    


•     III.    IJext    it    is   argued  that   the  mayor  who   originally  tried 
the  case  had   no    jurisdiction   -    ?irst,    because  the   information  was 
not   marked   f  LI  ed._by_him:    and,     second7~^  because   it    did   not    locate  the 
place  where  the  offense   is    said  to   have  been  comjnitted.   The   first 
point    is   v/ithout   merit  .   True,     the  original    information  v/as    not  i 

marked   filed;   but  "€his  v/as    not    essential  to   give  the  magistrate 
jurisdiction.    It    y.-as,in  fact    sworn  to  before^'the  mayor,     and  left 
with  him  as   an   information.    He  treated    it    as    such,     and  acted  thereon 
Cn  that    defendant    was    convicted,    and   from  the   judgment   thereon  he 
appealed.      This   shows   a   §'uf7lclent    filing.    State  v .   Briggs.     53    Iowa, 
416;    St  at  e  v  .    Gui  s  enhaus  e,     2d^lcv:a,     227. 

The  sufficiency  of  the   information   in   its    charge  as   to   the 
location  of  the  place  kept   bv  the  defendant    was    not    challenged  unti- 
the   case   reached   the  digtrint'  court.      Upon   such  challenge  being   in- 
terposed,   plaintiff   filed  an  amendment   to   the   information,    making 

526  5 


y/r  ■ 

r    i  ^ 


91 
The  Preliminary  E>:ardnat  icn,    and   Sumary  Trial   of 
I'cnindictable  Cffeiises 

the  charge   in  thif?   respect    specific.      Tiiat   an   inforniat  ion  may  be 
amended   is   too    well    settled  to    revvaire_  the  citation  of  authorities, 
and  the  amendment   may  '^e  made  after   appeal   tc  the  district    court. 
State  ?.   lie  r  chant.     36    lov/a,     375;    St  at  e  v  .    Do  e,     5C    Iowa,     541;    State 
V.    Heilly,     ICS    lov/a,     736. 

IV.  IJext  it  is  argued  that  the  amendment  to  the  information 
was  not  verified.  This  point  does  not  seer,  to  have  teen  made  in 
the  district  court,  jloreover,  the  aroendKent  appears  to  have  Leen 
SY/orn  to  before  the  mayor. Put  it  is  said  that  the  ns.yov  was  outside 
of  his  jurisdiction  when  he  administered  the  oath.  The  presump- 
tion is  otherv.irse,  and  this  presumption  is  not  rebutted  by  anything 
in  the   record.  '^*    ^ 

V.  In  a    reply  argument    defendant    contends  that    he  v/as    entitled 
to   a   jur:'  trial*  in  the  district    court,    and  that    this    right    cculd 
not  be  v/aived.   This  point,     e-y'-en   if  properly   raised,     is   settled  ad- 
versely tc   defendant'  in  Stat  e""?":^ Ill ..     74    Iowa,     441  .    Conceding, 
arguendo,    that   the  proceedings   are   crjjranal    in  character,    yet    as 
tney  are  to   be  tried    i.-i  the  same  manneri     5cti^^~o^iginaliv  and   on 
appeal,    as   proceedings  before  a   .just  ice    (Code,     section  692),  defen- 
dant   cc'old    waive  a   jury  on  his   appeal  . 

VI.  Lastly,     it    is   argued  that   there   is    no    evidence  to   support 
a   conviction.    In  answer  tc   this    it    is   sufficient    tc    saj.'  that    we 
find  ample  evidence  tc    sustain  the   ch.arge. 

There   is    nc    error,     and  the   judgment    is   affirmed . 


•  Section  5. 

Discharge,     Commitment    and  Bail . 

If,     as   a   result   of  a    summary  trial    for  a   nonindictable  offense 
the  defendant    is   acquitted,     either  by  the  justic-e,'or  by  a   jury,     he 
must   be   i  mrn  ed  i  a  t  el  y   Airs  c  ha  r  g  ed    (560  5)    and  h&s  the  benefit   of  the 
rules  of   former   jeopardy.      _,ut    if  the  discharge   is  because,  on  pre- 
liminary  examin^ticn^    ?he  magistrate  does    not    find  that    any  offense 
has  been  ccmr^iitted,     o-^   finds  that    an  offense  was    committed  but 
that    there   is   nc    sufficient    reason  to   believe  the  defendant    guilty 
thereof    (5229),    there  has  been  no    judgmei-it   cf   ccn'/iction  or  acquittal 
and  the  rules   cf   former   jeoioardy  do    not    a-prjly.      If  the  result    of 
the  sammarv  trial    is   t^Ttt^Te*  defendant    is' convict  ed,     cr   if  he  plead- 
ed guilty,     ■'   the   .iustice  shall    render   judgment   thereon  of   fine  or 

5263 


92 

Discharge,     Corpjr.it merit    and  Bail. 


imprisonment,    ss  the  c"se  may   require"    (5603).      Unless   appeal 
taken   "the   judgment    shall   be   executed  by  a   peace  officer  of  th 


is 
e 


the  defendant 


the  Steps   of  the  Defendant. 


Each  material    witness    for  the  state   is    required  to    enter  into 
a  written  undertaking  to    appear  and^testify  at    the  defendant's 
trial    (5232),     and  may  be   required  to   give  security  therefor   (5233). 
If  any  witness    refuses   to    comply   v/ith  such  borders   he  must   be 
committed  by  the  magistrate    (5235).      The  magistrate  must    then 
"return  tc   the  district    court   of  the   county,    on  or  before   its  open- 
ing,   on  the   first    day  of  the  next    term  thereof,     and  as    soon  after 
the   closing  of  the   examination  as   T)ract  icabl  e,     all   the  Tsapers    filed 
in  the  nrcceeding,     including  therewith  the  minutes   of  the    evidence, 
together   v/ith  the  undertaking  of  bail    for  the  appearance  of  the 
defendant,    and  the  undertakings   of  the. witnesses  or  for  then,    taken 
by  him".    (52  36)  .  *  ' 


5263 


« 
THE    IITDICT^jTEITT 

Sect  ion  1 . 

The   Finding  and  Presentation  by  the  Grand   Jury. 

'The  grand    jury,     one  of  the  ancient   English  institutions,     is 
a  "body  of  men   summoned   frora  all    parts   of  the  county  to    pass   upon 
accusations      of  crime  therein.      The  number  was  variable  at    conmoni 
lav/,    but    could   not    exceed  t v;enty-three   nor  be  less   than  twelve.   The 
Constitution  of   Iowa   says    (/article   5   Section  15;    that    "the  grand 
jury  may   consist    of  any   number  of  members   not    less  than   five,     nor 
more  than  fifteen,     as   the  general    assembly  made  by  law  provide." 
The  provision  made  by  the  general    assembly   was  that   the  grand   jury 
shall    consist    of   seven    (S240.      For  the  statutory  previsions   as  to 
prenaration  of  lists   and  method  of  drav/ing   see   Compiled   Code,     Q   } 
6992  tp   70oC    inclusive  and    tj(j    9299,     9X0   and   9X7).      "All    quali- 
fied  electors  of  the  State,     of   good  moral    character,     sound   judg- 
ment,    and    in  the   full   possession  of  the  senses   of  hearing   and  see- 
ing,    and   v/hc    can  s-oeak,"    write  and    read  the  English  language,     are 
competent"   to    serve  upon  the  grand   jury    (332),    but    the  law   express- 
ly  exempts    certain  persons    from  liability  to   act    as    jurors.    (Supp. 
l\     0    333)    and  sets    forth  what    circumstances   will    constitute  an 
excuse   for     others    (334).    "From  the  persons    impaneled   as   grand 
jurors   the   court    must    appoint    a   foreman"    (5248)    to    whom  a   special 
oath  is   administered    (5249).      The  other  grand    jurors   are  sworn  to 
"well    and  truly  observe"    "the  same  oath"    (5250).      The  grand   jury 
is   then  charged  by  the   court    (5251)    after  which  it    proceeds  to 
"inquire   into   all    indictable  offenses    which  may  be  tried   within  the 
county."    (5253).    '.Vitnesses   may  be   required   to   attend   under  sub- 
poenas   issued   by  the   clerk  of  the   court    (5262;    and   see   5271,     5270, 
and   5255),     and  the   county  attorney  may  attend    for  the  purpose  of 
examining   witnesses    (526^4)    or  giving   information    (5265);    but    no 
person  but   the  grand    jurors    shall   be  present    when  the  vote   is 
taken  upon  the   finding   of  an  indictment    (5265)  . 

A  bill    of  indictment    is   a   written  accusation  of  crime  drawn 
b.y  the  prosecuting   attorney  a.ad   submitted  to   the  grand   jury.      If 
this  bill    is    found   and  presented  by  them  upon  oath  or  affirmation 
as   a  true  bill,     it    then  becomes   an   indictment    and  the  accused 
stands    indicted.      The   concurrence  of  at    least   twelve  grand   jurors 
was   necessary  at    comii.on*  law,    but    under  our   Code  the  concurrence  of 
five  is   sufficient    (Supp.    '13,     j    5274a)  .      If  there  are   not    five 
grand   jurors    who   vote  that    the  bill    of  indictment    shall   be   found 
to  be  a  true  bill,     they   "ignore"it,     whereupon  it    does   not   become 
an  indictment    and  the  accused  person   is   not    indicted.      If  the  grand 
jury  of  their  ov/n  knowledge,     or  of  their  own  motion  on  information 
from  others,    take  notice  of  a   public   offense   it    is    called   a  pre- 
sentment.     By  general    practice  at    common  law,    this   presentment    came 
to  be   regarded  as   a  mere   instruction  to   the  prosecuting  attorney 
to"  draw  a  bill    of   indictment.      If   such  bill    was    drawn  by  him  and 
found  by  them  to  be  a  true  bill,    this    indictment   became  the  basis 

5263 


The  Finding   and  Presentation  by   the  Grand   Jury  94 

of  the  prosecution.      In  sone  other  jurisdictions    it    has   been  held 
that    a   prosecution  can  be  based   upon  such  presentment    without    any 
indictment    or   informotion    (State  v.    Hunter,     1845,     5   Hunphr.    (Tenn) 
597).       It    is   probable  that    it    v/as   because   of   this    notion   that    we 
find   in  the  Constitution  of   lov/a    (Article  1,     Section  11)    language 
to   the   effect   that    no   person  shall  be  held  to   answer   for  certain 
offenses    "unless   on  presentment    or   indictment   by  a  grand    jury". 
£ut   this    wording  disappeared   in  amendment    (in  1884   -  the  amendment 
was    inserted  as   section  15  of  article  5)    and   it    has   not   been  the 
practice   in  this   state  to    use  this  presentment    in  lieu  of  an   in- 
dictment.     The   result   has  teen  a  tendency  to    use  the  v/ord   "present- 
ment"'   for  another  purpose.      It    is   the  duty  of  the  grand   jury  to    in- 
quire  into   all    indictable  offenses    which  may  be  tried    »vithin  the 
county   and   "present    then  to   the   court   by   indictment"    (5253).    In 
the   foreman's   oath    (5249;    this    is    referred  to   as    "presentment".   As 
30    used   it   has    reference  to   the  presentation  of  the  indictment   to 
the    court.       (And   see   5267). 


Stat  e  V  .   Tucker  . 

Supreme   Court    of   Iowa,     1866.    20    lov^   508. 

An  indictment    having  been   set    aside  on  motion  of  the  defendant, 
the   state  appealed. 

Dillon,     J.    -   The  record   shov/s   that    five  witnesses,     in  addition 
to   the  said  Philomela,     gave   competent    evidence  before  the  grand 
jury,     and   sufficient,     even   if  hers    was    excluded,     to    justify  and 
even   require  them  to    find   a  bill.      To    sustain  the   ruling  of   the 
court,    the  defendant  's   attorney   cites   us  to   subdivision  4  of   sec- 
tion 4691    of  the  Revision,     which  provides  that   the   indictment    shall 
be   set    aside   "when  any  person  other  than  the  grand    jurors    was   pres- 
ent  before  the  grand   jury  during  the   investigation  of  the   charge, 
except   as    required  or  permitted  by  law." 

It    is   not    claimed  that    the  wife   "was   present   before  the  grand 
jurj'-   during  the   investigation  of  the   charge"   against    the   indict- 
ees,    except    when  being   examined  as   a   witness. 

But   the  objection   is,     that    she   was   present    as    a   witness;    and 
the  argument  to    support    it    is,    that   being  the  wife  of  one  of  the 
defendants   on  a    joint    charge  and   indictment,     she   was    incompetent 
as   a   witness      (Rev.    i59o-3).   that        being      in.competentt  as      against 

her  husband,     she   is  likewise   incompetent    as   against   any   co-defen- 
dant   (1    Greenl  .    Ev.,     {(/    334,     335);    that    from  the   nature  of  the 
charge  she   cannot   testify   against    her  daughter,     without    at    the   saime 
time  im.plicating  her  husband;    that   being   for  these   reasons    incompe- 
tent   as   a   v.ltness,     she   was    "neither  required  or  permitted  by  law" 
to  be  present    during  the   investigation  before  the  grand   jury.    It    is 

526  3 


The   binding,   and  Presentation  by  the  Grana   Jury.  95 

not    necessary  to    decide   v/hether  tne  v/ife   is    a   competent    witness 
against    her  husband   or   her  daijighter.      Even   if   it   be  admitted  that 
she   is   not,     still   this    constitutes    no    ground    for  setting   aside 
the   indictment.      The   section  of  the  Revision  cited    (4691,     sub-div. 
4),    hss    no    reference  to    such  a    case. 

Its   object    is   to    exclude  outsiders   or  spectators    from  the 
grand   jury   room. 

Whether  v/itnesses    are   competent    is   often  a  very  difficult 
question  of  lav/,     and  to    hold  that    if  the  grand    jury,     in  the 
course  of  their   investigation,    happen  to    examine  an   incompetent 
witness,    that   this    will   have  the   effect   to   vitiate  their   finding, 
is   going   a    step   further  than  we  are  prepared  to   take.   The  motion 
of  the  daughter  to    set    aside  the   indictment    should   have  been  over- 


ruled 


■Reversed . 


State  V  .    Clapper, 

Supreme   Court    of    lov/a,     (1862).      59    lov/a   279,     13  IT.  »i/'.    294. 

The  defendant    appealed   from  u   conviction  of   the   crime  of 
taking  goods   and   chattels    from  ^Jie_custody  of   an  officer. 

• 
Seevers,     Ch .    J.    -  The  attorney-general    has   filed  an  amended 
abstract    v/nicii,     as    v/e  are  advised,     has  been   served  on  the  defend- 
ant,    who    has  made   no    response  theretlD  .      Under   such  circumstances 
auch  abstract   must   be  deemed  trueT~~  This  being   so,    there   are  but 
two    questions   that    can  be  considered  by  us. 

The   first    is    whether  the   court    erred    in  overruling  the 
m.otlon  to    set    aside  the  Jndictment .      It    arrears   a   previous    indict- 
ment   had  been   found    forTPTe   same  offense  v/hich,     for   som.e   reason 
not    disclc-ed  by  the   reco'ra^    was    set   aside  and  the  cause   referred 
back  to   the  grand    jury.*  In  the  absence  of  any   showing  to   the 
contrary,     the  foregciT^  action  of     the  court    must    in  all    respects 
be  presumed  to  be   correct. 

As    v/e  understand,     the  present    indictment    was   found  on  the 
minutes   of  the-   evidence  attached   to   the   first    indictment    and  one 
additional  fitness    who    was/examined  before  the  grand   jury.      The 
motion-f?  s^t' aside  the   indictment,    among  ether   reasons,  "  was  based 
on  the  fact    that    all   the  witnesses    utjon   whose   evidence  the   indict- 
ment   was    found  v/ere   not    examined  by  the  grand    juiy.      £ut   this    is 
a  mistake.      Both  indictufi^Tf s   were   found  bv  the  same  grand    juTy 
and  tnerefore  the  witnesses    vyere   examined' bysuch  jury.      V^hen  the 
I  irst    indictment    was    found  the  grand   jurorsHeard  the  evidence     and 
saw  the   witnesses,     and  there   v.a^jno    necessity  to  hear  or   see  them 

3263 


/ 


♦^ 


y 


The   Finding  and   presentation  by  the  Grand   Jui: 


96 


again.      Several   other  reasons    are  assigned  iia  the  motion  as  grounds 
for   setting  aside  the   inajjatii^nt,  but    in  the  state  of  the   record 
the   foregoing   is   the  only  one  that    can  be   considered. 

The   second   question  v/e  are   called   uron_to    consider   is    as 
to   the   sufficiency  of  the   indictment.      It*~was    found   under  section 
3915  of  the  Code,     and   substanTially   charges   a   crime  as   defined  by 
the  statute.      We  are   unableto   discover  any  objection  thereto.   The 
most    precious   grounds   assigned    in  the  demurrer   is   that   the  sheriff 
from  whom  the  property  was  taken  was   alleged  to  be  the  o-iwner  there- 
of.    This,     we  think,     is    correct   because  the  sheriff  v/as    a  bailee   in 
possession. 


Affirmed 


Stat  e  V  .   (^^sbcrne . 
Supreme   Court    of   Iowa,    1885.      61    Iowa    33C,    16   IT.    vV.    2C1 . 

From  a   conviction  of   first    degree  murder  the  defendant 

a^^eal  ed  , 

Beck,  ■  J.    -    I.      The  prisoner  v/as   lield  to   ansy/er  before  the 
grand   Jury   fcr   the   crime   for  which  he    was    i nri ct"ed,    and,     in  the 
exercise  of  the   right    conferred  by   statute,     challenged  a  grand 
juror,     on  the  ground  that    he   had   formed  and   expressed   an  opinion 
of  defendant's   guilt.    See   Code,     (j    d   4258  and  4261.   The   challenge 
vi/as   sustained,     and  the  court,     under   §    4264,     directed  that    the 
juror  objected  to    should   not   be  present   at    or  take  any  part    in  the 
consideration  of  the   charge  against    the  prisoner.      This   direction 
was    disobeyed,     and  the  juror   v/as   present    during  the   consideration 
of  the   case  by  the  grand   jur;,^.    Upon  the   return  of  the   indictment, 
it    was    set    aside  upon  motion  of  the  prisoner,    based  upon  the  mis- 
behavior of  the   juror  just    stated.      Thereupon  the  court,     against 
defendant's   objection,     re-submitted  the  case  to  the   same**grand 
jury,  again  directing  the  juror  v/ho   had  been   challenged  to   take  no 
part    in  the   consideration  of  the   charge  against   the  -orisoner,     and 
not    to  be  present    v/hen  the  case  should  be   considered'.    The     prisoner 
asked  permission  to    challenge  the  grand   jurors  to    whom  the  case  was 
finally   submitted,     on  the  ground  that   they  had   formed   and    expressed 
an  opinion  of  his   guilt.   This    was   denied,    and  the  riiling   consti- 
tutes  the  only  ground  of   error  that    need  be   considered   upon  this 
appeal .  •  """  —  — 

II.    Code,     5    4261,     conferring  UT)on  the  prisoner  theg|right 
of  challenging  grand   jurors   on  the  ground   of  opinions,     formed   and 
expressed,    of  his    guilt,     does    not   prescribe  the  time   within  which 
the  right   shall   be   exercised,    ITor  does    it    prescribe  that,     if  the 
fight   be   exercised,     and  one  or  more  of  the   jurors  be  challenged 

" — ^  -     5263 


The   Finding   and   Freseiatat  icn  by  the  Grand    Jury 


97 


further  challenges    shall    not    be  made,     when  ground  therefor  arises 
sfter  the   first    challenge,      In  the  absence  of  any  statute  sc   pro- 
viding,   the  prisoner  ought   to  be  permitted  to    exercise  tne   rignt 
to    challenge  the   jurors    e.t    any  time  before  they  consider  the  case 
upon  information  gained  that   they^are  lawfully   subject   to    cnaiienge 
on  account    of  raatters    arising  after  a^  prior   challenge  ^^\^^^^^    ...  ^ 
made.      A   different    rule   would   defeaTnTiB-v^ry  purpose  of  the  statute 
namely,     to    secure  a   fair  and  unprejudiced  grand   jury,    to    wJiom  tne 
charge  shall   be  submitted.      In  the   case  before   us.     after  tne  ursL 
indictment    was   set    aside,     the   rights   of  the  prisoner   were   no   otner 
or  different    from  what    they   were   when  the  first    challenge   was   made. 
He  had  a   right   to   an  unprejudiced  grand   jury.    Tne  proceedings    re- 
sulting   in  the   first    indictment    stood   for  nothijig.      The  prisoner 
should   have  been  perraitted  to    fully    exercise  his    right    to    challenge 
the   jurors.   There  was   ground   for  believing,     nay,     for  kno wi ng,    tnat 
the   jurors   hsd   formed  and   expressed   an  opinion  of  the  prisoner  s 
guilt      for  they  had   heard     the   evidence,     and   upon  their  oaths    re- 
turned an  indictment    against    him.   But.     it    is    said,    they  gained  tne 
knov/ledge  of  the   facts,     and    expressed  their  opinion  of  his   guilt, 
acting  as   grand   jurors.   This   does   not    change  the   case.    Suppose  one 
of  the  grand   jurors   had  been  upon  a    coroner's    jury,    or  had  been 
upon  a   jury  before   v/hom  an  accomplice  had  been  tried  and   convicted. 
In  each  case  the  juror  would  have  gained   knowledge  of  the   facts, 
and   expressed  an  opinion  of  the  prisoner's   guilt,     under   circumstan- 
ces  substantially  the  same  as    existed    in  this   case.      It    will    not  be 
claimed  thet    he  would   not   be  the  subject   of  challenge.      It    is   also 
said  that    no   prejudice   resulted    from   refusing   defendant   the   right 
to   make  the   challenge,     as   he  was    convicted,     and   thus   shown  tc  be 
guilty;    and  that    we  must    presume  another  grand   jury  would  have 
found   an  indictment   against    him.      The  facts    stated  may   all   be  ad- 
mitted,   but    v/e   cannot    exercise  a  presumption  of   a  prisoner's   guilt 
in  order  tc    sustain  proceedings    resulting    in  his    conviction.    Such 
a   rule   would,     in   effect,  declare  that    a  verdict    cures^all   violations 
of  law  and    irregularities    in  criminal   trisils.   The  State  v.    Gillick, 
7    Iowa,     287,     supports   the  conclusions    we  have  announced. 

III.  It    is    insisted  that,     as   the   courts  may   resubmit   the 
cause  to   the  same  grand   jury,     under  the  provisions   of  Chap.   IX', 
Sec.    5,     Acts   of  the  Eighteenth  General    Assembly,     (Miller's    Code, 
p.   1C08,     and  McClain's    Statutes,     p.   1067^  )    this   provision   would 
be  defeated   if  the  prisoner  may   challenge  the  grand   jurors   on  the 
ground  of  knowledge  derived,    and  an  opinion   expressed,     in  proceed- 
ings  resulting   in  a  prior   indictment.      £ut   this   provision  must    be 
construed    in  harmony   with  other  statutes,     and    it    must   be  under- 
stood as   directing  that    a   charge  may  be   resubmitted  to   a   grand 
jury,    to   be   examined   under  the   rules    elsewhere  prescribed.      In  this 
viev/,    the  right    of   challenge   is   not    abridg"ed"^ 

IV.  The   State  v      Fowler,     52    Iowa,     10  3,     is    cited  bv  the  attornev- 
general    m  support,    of  t.'ne  position  that,    as   no   prejudice   was      shown' 
in  refusing  to    defendant   the   right   t,o^_£hall  enge' the   jurors,  the  de- 
fendant   cannot    now  fco-B^Dlariri .  In  that    case   it    was   proper  to   presume 

6263  ^^ 


The   Finding   and   Prese««tat  ipn  bv  the  Grand   Jury  96 

that    no    prejudice   resulted   from  a   failure  to   afford  the  prisoner 
an  opportunity  to    challenge  a   grand    juror,  who   took  the  place  of  one 
who    was    excused   from  the  jury,     in  the  absence  of  any   showing  cr 
ground  of  inference  that    a   cause  of  challenge   existed.      Lut    in  this 
v/e  r.iuet    presume  that    there   v/as   good   cause   for  challenge  of  the 
jurors,     on  the  ground  that    they   had   formed   and   expressed  an  opinion 
of  the  prisoner's   guilt.      The  State  v.    Felter,     25    Iowa,     67,     is    in 
the  same  manner  distinguished   from  this    case.      There   was   no   ground 
upon   which  prejudice   could  te  presuraed   in  that    case.    In  this   case, 
as   we  have  said,     there  is   ground  to   presume  that    the  grand   jurors 
had   formed   and   expressed  an  opinion  cf  defendant's   guilt,     and  they 
were,    therefore,     under  the  lav/  subject    to    challenge.   The   right    of 
the  prisoner  to    have  the   cnarge   considered  by  a  grand   jury  of  the 
character  co  nt  er.pl  at  ed  by  the  statute   cannot   be  denied. 

The   judgment   of  the  district    court    is    reversed.      But   the 
defendant    will    remain  in  custody  to   await   the  action  of  the  grand 
3ury,     and  the  cause  will  be   remanded  to  the  district    court    for  an 
order   resuhmitt ing  the  charge  to  the  grand    jury. 

Reversed . 


Stat  e  V  ,    Harris  . 

Supreme   Court    cf    lov/a,     1919.      -    Iowa    -   172   IT.    V7,    942. 

The  defendant    ap-neeled   from  a   conviction  of  the  crime  of  hav- 
ing maliciously  threatened  a    certain  person. 

Ladd,     C .    J .      An   indictment    v/as    returned   against   the  accused 
September  4,     1 91 S,     and  tv/o    days   later  he  moved   that    it  be   set    aside 
for  that    one  Schmidt,     who    had  been   regularly  drawn  and  summoned   as 
a  grand   juror,     had   failed  to   appeer,     and   in  his    ste&d  one  Miller 
acted  as   meraber  of   said  grand   jury.      This  motion  was    confessed  by 
the   county  attorney  September  IC,    1 91 8,     and  the   court   ordered   the 
indictment    set    aside  and    "that    the   case  be  submitted  tc   the  grand 
jury  tt   the  Cctober  term,  1918."      At    the^ctober  term  the  grand   jury 
was    impaneled    v/ith    »•/.    uTT'TTeynoldc,     Henry   Hansman,  and    m.   Miller 
as   members  thereof,     who    had   also    served   as  members   of  the  grand 
jury   which  returned  the  indict;nent    set    aside:   7 

The  accused   challenged    each  of  these  persons    for  that,     as    v/as 
contended,     he  had    "formed  or   expressed   such  an  opinion  as  to   the 
guilo   or   innocence  cf  the  prisoner  as    would   prevent    him«from  render- 
inPT  a  true  ve-dict    UTcn  the   evidence   submitted  on  the  trial"    (sec- 
tion_5243.     Code),    and   each  challenge  was  overruled. 

5263 


The   Finding  and   Tresentation  by    the  Grend   Jury  99 

RfSjTiolds   had   answered  that    he  had    no    acquaintance  v/ith  the 
accused   save  5S   he  aiopeared  before  the  previous   grand   jury,     and 
that    all   he  knew  about    the   case  v;as   what    he  had   heard   at    that 
tixne;    that    he  then   f  c  rmed   and    exr;ressed   a   -cositive  opinion  as   to 
the  merits   of  the   case,     and    still    had    it;   that    it    would  prevent 
hiri   from  rendering  a  true  verdict    if  the   evidence   was   the  sane  as 
before  the  grand   jury  at    the  previous   term  of  court;    that    his   opin- 
ion woiild  be  as   then  expressed   unless   he  had   some   reason  to    change 
i-^,     and  that    he  then  voted  to    return  an   indictment.      Thereupon  the 
court    elicited  the   fact    that    he  vTas    not  prejudiced   against   the 
accused  and   could  listen  to   the  testimony   "with  relation  to    finding 
nn   indictment    or  not    ".vithcut    any  passion  or  -Drejudice  or   feeling 
against"   hin,     and  that    he   could    "return  such  a  verdict    as   he  be- 
lieved the   evidence  warrant  ed  .J,^  Thereut)on  the   challenge  was   over- 
-i-uled.  • ^ 

Kansman  and  Lliller  testified   practically  the  same  as    did 
Reynolds,     save  thet   on  examination  b^''  the  court    Hansman  said  that 
he  did  not    mean  tc    say  that    he  had  any  opinion  as   to    the  guilt   or 
innocence  of  the  defendant,    though  he  had  testified  that,     "if  the 
evidence   v/ere  the  same  as    was   submitted  before,     he   v/ould  vote  the 
same  ;vay,  "   and  declared  that    he  had    "formed   a  positive  opinion  as 
to   the  merits   of  the  case."   ICiller   swore  that   the  fact    that    he 
had  voted   for  an   indictment   before   would  have  an   influence  on     his 
vet  e   again. 

It    is   apparent    from  the   court  's    ruling  that   too   much  signifi- 
cance was   given  to   the  fact    that   these  men  could  proceed   without 
any   feeling  cr  b i a s   ^a i ns t__t^he_  accused.      This    is   not    enough  to 
qualify  the  juror.    /The -test    prescribed    is    whether  such  an  opinion 
had  been  formed  or  expressed   concerning   his   guilt   or   innocence      as 
\vculd  prevent*"them  from  rendering  a  true  verdict  .J    Each  declared 
in  the  most    positive  manner  that    he  had    formed  AfA    expressed    such 
an  opinion.   The   finding  and    return  of  an   indictment    confirmed  this, 
and   there  v/as    no    room     for   ruling  otherwise.      The  challenge   should 
nave  been  sustained.   See   State  v.   Csborne,       61    Iowa,     3X,    16   !I.    ./. 
2C1,     where   evev^r   point    raised    is    ruled   adversely  to   the   contentions 
01    tne  state.    See,     also.     State  v.    Gillick,  7    Iowa,     287,     and   State  v. 
£ullard.    127    Iowa,    168,  lCTlTT~t7ir2C: 

The  judgment   of  the   district    court    is    reversed,    but    the 
defendant    is    continued    in   custody,     and  the  cause  remanded   to   the 
district    court    for  sucn  order   v/ith   reference  to    resubmission  to 
the  grand   jury  as   may  be  deemed  Spprcpriate. 

"Reversed   and   remanded. 


526  3 


The  Finding   and  Presentation  ty  the  Grand   Jury  IOC 

Hobson  V.    District    Court    of  Linn   County. 

Supreme   Court    of    Iowa,     1920,     -    Iowa    -   177   N,     iL    4C . 

A   witness    refused  to   gi^'e  testimony  "cefore  the  grand   jury 
upon  the  ground   that    the   evidence  sought    was    ininaterial    and   not 
germane  to   any  matt  er  then  under   investigation  before  that   body. 
Having  been  ordered^^committ  ed  to  the   county   jail    until    such  time 
as   she   signified  a   willingness   to   testify,     she   instituted  pro- 
ceedings   for  cert  iorari^to   test    the  authority  of  the   court    to   make 
such  order.  ~^ ■ '  =» 

Stevens,     J.-   After  being  duly  sworn  by  the  fore-man  as   a 
witness  before  the   grand   jury  of  Linn   county,    plaintiff  declined 
to    ansY/er  the   following   questions; 

(1)    In  what    business    is   your  son  Leo    Hobson  now  engaged? 
(2)    State  to   the  grand  jury   where  your  son  Leo    is   at    the  present 
time,     and  anything  you  know  of  his   present    whereabouts. 

She  was  brought    into   open  court   by   the  grand   jury,     and,     in 
the  presence  of   all    the 'members   thereof   and  at   the   request    of   its 
foreman,    the   county   attorney    informed  the  court   that    the   witness 
refused  to    answer  the  above   questions,     and  that    in  the  opinion  of 
the  grand   jury,  both   interrogatories   were   important,     pertinent,     and 
material   to    certain  matters   then  under   investigation  before  that 
body.    Nothings  v/as    disclosed  '6y~~Zlae  county  attorney  or  grand   jury 
as  to   the  subject    or  nature  of  the  investigation  referred  to,     and 
no    inquiry  v/as   made  by^^yie^  court    in  relatj^^  theret^^^^ 

Counsel   appeared   for  plaintiff,     and  objected  to   the   questions 
on  various   grounds,     among  which  v/ere  that    the   evidence   sought    v/as 
immaterial,    not    pertinent   to    any  m.atter  pending  befo  re  the  grand 
jur-/,     and   did   not   tend   in  any  way  to   prove  the  ccmm.ission  of  a 
criminal    offense  by  Leo    Hobson  or  any*  other  person,     or  that    evidence 
as   to    his    whereabouts   v/ould  tend   in  any   way  to   aid  the        jury   in 
its  _  invest  igat  ion  of  offenses    committed    within  the   county  of  its 
jurisdiction.     The  objections   were  overruled,     and   the   witness   dir- 
ected to    answer.      Persisting   in  her  refusal   tc    do   so,     she  was  by 
the  court    ordered   committed  to   the   countv   jail    until    such  time  as 
s-:e  signified  a   will  ingness  _to    comply   with  the  order  of  the   court. 

The  grand   jury   is   an  appendage  or  constituent    rart    of  the  court 
exercising   certain  limited  powers    and  duties    under   its    instructions 
?nd  direction,    but    also    exercising   certain  other     rjowera   and  duties 
••.ndependent    and  beyond     the  control   of  the   court.    ^  It    is    its   duty 
to   dixigently   inquire,    and  true  presentment   make,    of  all    offenses 
commlttea  or  triable    within  the  county  of   its    jurisdiction,     of 
wnicn  It    has   or  can     obtain  legal    evidence. 

5263 


The   Fir.ci-in/?   and   Freaentt-t Ion  >y  the  Grand   Jury  ICl 

Its   proceedin'-s   are   conducted   secretly  and   with  the  assistance 
cf  the  county  attorney,     r  nd   it    may   request,     and   receive,     advice 
frcn  the  courts      It    has    no    power  to    compel  the  attendance  of   v/it- 
nepse?      or  foriunish  them  for   refusing  to   ansv/er   -luesticns   pro- 
T^cunde'd  to  them.      S^utpoenas   are   issued   from  the  office  of  t  he    cl  erk 
t  -Id  the  attendance  of   witnesses  before   it   may  te   enforced  ty  tne 
-^ourt    in  the   s-ne   way  as    v/it  ness    served    with  a  sutpoena  to   testily 
in     any  matter  pending  before   it.      The  power  to   punish  a   witness 
for   refusin.-?  to   testify  before  a  grand   jury   is,    by   section  4^61   oi 
the   Cede,     conferred   upoi\  zhe  court.      The  proceedings    in  case  of  tne 
refusal   c^  a   witness  to  testify  before  that  body  and  the  nature 
of  the  hearing  before  the   court    are  set    forth  in  section  5270   of 
the  Code  as    fellows; 

"  ivhen  a   witness   under   examination  before  the  grand   Jury   re- 
fuses  to   testify  or  to    answer  a   question  put   to   him,  it    shall   pro- 
ceed  with  the     witne!?s    into   open  court,     and  the   foreman   snail   then 
distinctly   state  to   the   cou^t    the  question  and  the  refusal   of  the 
witness,    and   if  upon  hearing  the  witness   the   court    shall    decide 
that    he   is   ccund  to   testify  or  answer  the  question  propounded,     he 
shall    inquire  of  the  witness    if     he  persists    in  his    refusal,     and, 
if  he  does,     shall   proceed   v;ith  him  as    in  cases   of  similar  refusal 
in  open   cou- 


If  will   be  obser'/erl    from  the  provisions   of  the   foregoing- 
section  that    after  the  v/itness   has  been  brought    into    court   the 
foreman  shall   then    dit^tinctly  state  the  question  or  questions   pro- 
pounded tc   the  v/itness,     and    inform  the   court    of   its    refusal   to 
answer  the  sane;    then  "if  upon  hearing  the  witness,    the   court    shall 
decide  that    he   is   bound  to   testify  or  answer  the  question  propound- 
ed,   he  shall    inquire  of  the     witness,     if  he  persists    in  his    refusal, 
and,     if  he  dees,     shall   proceed   with  him  as    in  cases   of  similar   re- 
fusal   in  open  court."     Technically,    the   contempt    of  which  the  wit- 
ness   is   guilty   i'j   the  violation  of  the  authority  and  dignity  cf  the 
court,    but    cominitted   in  the  presence  of  the  grand   jury.  The  grand 
jury  is  the  instrumentality  by   which   evidence  of  the  violation  of 
criminal    statut-es    is   obtained   and  presentment   made  to   the  court, 
and  no    doubt    wide  latitude  must   be  allowed   it    in  the   exercise  of 
its    inquisitorial   powers,     and    its    efficiency   should  not  be  curbed 
or  circumscribed  by  technical    rules   of   evidence  with  which  ue!.ibers 
thereof     ordinarilj'-  have  little  or  no    familiarity.      ITeverthel  ess, 
indictments    should  be   founded  en  legal    evidence.    State  v.   Tucker, 
20    Iowa,     508;    State  v.    De  Croat  e.     122    Iowa,     561,     9S  IT.    u.    495. The 
informalities   observed   in  the  rules   of   evidence  by  grand   juries   and 
the   wide  latitude  allov/ed  them   in  the   exercise  of  their   inquisitor- 
ial  powers   should   never  be  Derm.itted  to   beccm.e  the   instru:nent    of 
oppression,    or  be     used   for' any  other  -ourpcre  than  that    of  obtaining 
information  as   to    indictable  offenses   triable  within  the  county   in 
which  the  grand    jury   is    sitting,     or  other  lawful    purposes,     nor 
snould  the  witness  be  his  own   judge  as   to   whether  he  will   answe-  or 
net.  but   tne  power  o-"  the  co-art    ir;   ample  to   -oreyent    abuse  cf  the  pre- 
rogatives  cf   either  grand   jury  or  witness,     and  to    enforce  all    neces- 
sary  ru^es    ic-  tne  proreT-  end    efficient    performance  of  the  duties   of 

5263 


Thn   Finding   and  PresenfcRtion  by  the  Grand   Juttj  1C2 

of  the  grand    jury.      It    v/cald,    te    say  the  least,  te  a  grave    injus- 
tice to    coranit    a   witness    for  contempt    of   cou-^    for  refusing  to 
answer  questions   having   no   materiality  or   relationship  to    any 
matter  pending  before   it,     or   fc  rming  the  subject    of   its    investiga- 
tion.     Such   evidence   is    not    legal    evidence   within  the  meaning  of 
the  law.      The   right    of  the  grand   jury  to   disregard  technical    rules 
of  evidence   in  the   examinrt  ion  of   witnesses    is   of  no    conorolling 
importance   in  a   proceeding  before   court   to    compel    a  witness   to     ■ 
answer  questions   propounded  to   thera.      Evidence   v/hich  dees    not  tend 
to    reveal    the  commission  of  some   indictable  offense,    or  to    identi- 
fy the  offender,     or  to   lead  to   the  discovery  of  other  material    and 
competent    evidence,     would   not   be  material.      The   sane  technical 
rules   of   e-.-idence,     so    far  as   practicable,    that    attain  in  the  trial 
of  causes   before  the   court    or  a   jury   should  be   applied   in  a  pro- 
ceeding  for   contempt,     and   it  makes    no   difference  that   the  offense 
consists    for  the  refusal   to    answer   questions   propounded  by,  or 
before,    the  grand   jury.      The  mat  erialty  of  the   evidence   sought,     no 
doubt,     may  often  be  apparent    from  the   form  and  substance  of  the 
question  asked,    but    unless   this    is   true  the   court    should   inquire 
sufficiently   into* the  proceedings   of  the  grand   jury  to   determine 
whether  t he^^^rrness   has   declined  to   testify  to   material   matters. 
"Rogers  V.    Superior   Court    of   City  &  County  of  San   Francisco,    145 
Cal  .    88,     78   Pac .    344;     In   re  Arcner,     rS^MicHTTo 8,     96   N.    »7.4?2. 

It    islrue  that   by   specific   statutory   enactment   the  proceed- 
ings  o'f  the  grand   jury  are   conducted   in  secrecy.  The  reasons 
therefor  are  apparent    from  the  nature  cf  the  duties   performed 
thereby.      it    \fauid  often  defeat    the  very  purpose  of  the   inquiry 
if  public    revelation  was   made  of  the  particular  offense  being 
investigated,    but    sufficient    information  may  be   imparted  to   the 
court   and  made  cf  record    in  proceedings   of  this    character,    to    en- 
able  it   to    determine  the  materiality  and  legality  of  the   evidence 
sought,     without   violating   either  the  statute  or  public   policy 
upon  v/hich   itis_b  as  ed.      Proceedings   of  this    character  are  held 
in  this   sta:r^to  be   in  their  natJire__sj:lir,xr3^1^_jix_ciuasi_JiTiniri^l, 
and  a   clear   case  of   contempt   must   be   shown  by  the   evidence  where 
it    i_s_^equired.      Russell   v  .   .anderson.    141    Iowa,     533,    120   IJ.    W.   89; 
Caj:r  V.    District    Court.     14?    lowa.     6^3     126   II.    ,V.    791,     Ann.    Cas  . 
1913  D,     378;     y/elTs   v.    District    Gt  .   of  polk   County.     126    Iowa,     340, 
102   i\^    n.    106;    Tuttle  v.    Hutchison,       173   Iowa,     50  3,     151    II,    «,'.    845. 
The  refusal    of  the   v;itness    upon   which  the  rirosecuticn  is   based   was 
to   answer  questions    in  the  presence  of  the"  grand   jury,     and   not   of 
tne  court,     and  while,     as      stated,    the  offense   is   technicallv 
against    the  authority  cf  the  court,     it    was   not    committed   in"  the 
actual   presence  thereof. 

The_  quest  ions  propounded  to  the  plaintiff  may  have  been  intend- 
ed to  elicit  evidence  important  and  material  to  some  matter  properly 
under   investigation  by  the  grand   jury,    but    such  materiality   clearly 

thf aM°.L~^^r   "^.^^P^^LJf£t"-V^-^  1^"^  thereof.      If.     for   example, 
-4oVc,on  1 1  ^^^^^t-n^-ttr-tr^re-TTrst    question  had  been  that   Leo 
Hobson   ^as    engaged   in  the  dv^r  goods   business   at    Tipton,     Iowa     or  if 

5263 


The   binding  ani   Ires  19 ??t at  ion  by  the  Grand   Jury  IC  3 

in  snawer  to   the  second   question,     she  had  stated   that   Lee    Hotson^ 
was    residing   in  Kalamazoo,     it    is   hardly   conceivable  that    such   evi- 
dence y/ould   have  been  material,      i^efc^re  ordering_the   witnfess    com- 
mitted  to    jail^cxi^contex!i^tj^_jUl^~^oj^iT^^lhc\^^ 

g  m^Hjufy:  t  o   ma-k-e--  s4if:fT3"i  ent    slio-wlng  to    6n?^V1,  p   it  .jLP'    say   thayihe 
quest  ions_..w_er-fi-P^rop^r,     and' that   they  soup:ht   to    el  i c it   mat  en ai   and 
important    information.    Rogers   v.    Superior   Court,     supra;      In    re 
Archer,     supra. 

The  jurisdiction  of  the  grand   jury  before   which  plaint  if.f 
was    summoned   was   limited  to  Linn  county,     and   while   it    is    conceivable 
that   the   examination  might   have   resulted   in   eliciting   information 
tending  to   show  that   Leo    Hobson  was    engaged    in  an  unlawful    ousiiiess 
in.  Linn  county,    or  that    his   whereabouts   might   bear  such  relation 
to   other  facts,    or   circumstances,  as   to   have  an  important   bearing 
upon  the  v^uestion  of  his.   ov;n  or  the  guilt    of  some  other  offender 
punishable   in  Linn  county,     the  record  before  us    does    not    so    show. 

The   evidence   i.i  a  proceeding  to    punish  a   recalcitrant    witness 
for  contempt   must    show  affirmatively  that    he  had   refused  to   give 
legal    evidence   in  a  trial   before  the  court    or  before  some     other 
court    or  tribunal   having  a   right    to    demand  the   same. 

Sectio*h   4466,     Code  of  1897,     requires   that    where  the   action  of 
the   court    is    founded   upon   evidence  given  by  others    it   must   be 
reduced  to    writing,     filed,     and  preserved,     and    if  the   court    acts 
upon  personal    knowledge,     a   statement   of  the  facts    upon  whic^^i  the 
order   is    founded  must   be   entered   on  the  record   of  the  court,    or 
be  filed   and  preserved   when  the   court    keeps    no    record.      The   court 
could   not   determine  the  materiality  of  the   evidence  sought    without 
a   showing  of  the  facts    v/hich  should   have  been  made  of   record. 

It    is   the  conclusion  of  the   court    that   the   record  before  us 
does   not    sustain  the  cji^Mx..-CLf_jLiie_£^Mrt  -  b  el  o  v/,^  i  r  ect  i  ng  that 
plaintiff  be   committed  to   the  county   jail    until    such  time   as   she 
expressed   a   7/illingness   to   answer  the  above  questions,     and   is 
therefore  annulled. 


526  3 


1 


^ 


(Q 


/ 


